appearing for mr moreno i think that's his father's name so that's right yes he got mixed up in the process somewhere i represent mr marino i'm going to try to reserve three minutes for a little do my best to keep track of my time as your honors know there are a number of issues in the briefs i'm going to start with the court's permission with the two issues that affect all of the counts we're challenging which is everything except the illegal reentry count first there's the failure to include the right to resist excessive force in the self defense instructions second there's the exclusion of the defense experts testimony i can start with whichever ones  those the court may prefer but you're trying to start with the first of them and that event on the failure to include the right to resist excessive force there's three critical points first of all the government has entirely the wrong focus in its brief when it talks about everything that officer when he testified about what matters when you're talking about whether to give a theory of defense instruction is the defense version of the evidence and that's what mr moreno talked about in his statement and i actually gave you or tried to give you a detailed summary of that in the reply brief at page four he said things like i thought this guy is going to lose a bullet and kill me i thought he will lose the bullet it fired for the third time and i thought the shot almost hit my cousin i wanted it fully discharged so i would be arrested you understand and neither of us would be shot that's the evidence you assume is true for purposes of just siding with an instruction needed to be given but why wasn't the excess why wasn't the self defense instruction enough to cover this theory well it wasn't enough under this court's precedent your honor in united states versus spam spam was different because there the jury had been told that  if they thought it was an officer a federal officer then they didn't have the defense and that wasn't the jury wasn't told that here right there were actually two issues in span though another discussion inspan talks about whether the instruction the defen proposed was sufficient to preserve or set forth the excessive force issue and the defense through this proposed what was essentially exactly this instruction and the court said about this very instruction quote it does not amount to a proposed instruction on the right to offer reasonable resistance to repel any excessive force used by federal law enforcement officers now the span is a little confusing because there are two instructions t issuance band that the court's discussing one is the instruction that was actually given which is the one your honour's referring to and they said that didn't give excessive force at all but then they also discussed whether the defendant had preserved the issue of an excessive if so even if we say you preserved it what difference does it make because the self defense instruction seems to hold loud the argument that he had the right to resist well well your honor your honor span says it doesn't the language i just span is different because there the being an officer was a defense was a counter to the defense and that's not true here but spann is addressing two questions the first question is whether that instruction covered excessive force the second part of its discussion was whether the defendant preserve the excessive force issue in deciding whether the defendant preserve the excessive force issue it had to look at the instruction the defendant proposed and it looked at that instruction that the defendant proposed and it said what i just read but i'm asking so say let's give you the second part that you preserved the issue why is this not a harmless error then what difference does it make you got an instruction that was basically this gave you the argument because i think quote unlawful force and quote doesn't necessarily mean to a jury w excessive force means i mean i think what span says is it's not enough to say unlawful force it's said that the unlawful force language did not preserve or set forth an excessive force issue that's that's what spin holds as part of that's part of spann was that if you're not a federal officer it's not unlawful force i mean the concepts were intertwined in span because the jury had been told this thing about if you knew it was an officer you don't have the defense since this jury wasn't that i don't understand why excessive force is an unlawful force it would well only i guess speak and address that very language and spin and the reasoning i just read said a lot that unlawful force instruction doesn't include excessive force i mean that's that's one part of the reasoning of spann and i think this court has to follow it i mean you could argue i suppose one version of unlawful might be to read it that way but spann didn't read it that way and spann had the issue before it albeit in the context of whether the unlawful language preserve the excessive language the court actually doesn't need to resolve the case on this issue because there is of course my remaining issue about the discovery sanction and perhaps i can talk about that a little bit before you move on help me understand whether this argument that would essentially require reversal of all  which happened during the scuffle on the force which happened during the scuffle was part of the self defense now there are other reasons that stealing the vehicle count doesn't survive there's no evidence of an intent to write i'm trying to understand the spam argument and how broad it would be it's because the force that happened during the fight led to everything else basically except the illegal reentry that force is what all the other charges are premised on where's the gun when he gets in the ve since your honor has some doubts at least about the excessive force i would urge you to look back at span but i'm sure you have maybe you could look at it again let me let me address the exclusions of defense expert because because that's a case where i think  issue where there's case law almost directly on point really there are two two issues first it's debatable whether there was discovery violation and second the ninth circuit case law directly on point says you can't use the sanction of exclusion when there's no finding of willful violation if i can start with the latter because that's where the case loads and i can i ask you first though what this expert was going to testify about and how it was going to help the defense because it seems to me like it has to do with whether he intended to shoot the officer and that seems to go to the count that actually he wasn't convicted on well i don't i don't think so your honor because what what it goes to is the officer credibility for one thing it goes to who fired the shots and how issue too but those are the two critical ones the sympathetic squeeze response would basically i actually got curious and i internet search this the sympathetic squeeze response business when you're squeezing something with one hand you can  voluntarily squeeze with another hand and that could make the shots go off so that would would tend to back up and enhanced the credibility of mr moreno's version of events and enhancing the credibility of his version of events i think would be helpful as to all counts second the gunshot residue the officer you may recall said one of the shots was fired like right by his head presumably right by his body this expert would have testified that there would have been gun resid gunshot residue on his clothes and or is face your head if that had been the case i mean it's pretty many steps removed i mean so i guess that would help with the credibility generally but it's not like i mean whether he tried to shoot him in the head has to do with attempted murder count that he wasn't convicted on right and it's a little hard to see how it helps with the robbery of the car i mean as many steps removed from how it helps with these other count is it's not it's not just whether he shot near his head it's also who fired the first three shots the officers it was basically those were all filed fired by mr moreno in an aggressive way what mr marino saying as i was trying to keep the gun away from me and get away from him and the shots went off so it really goes to more than just whether the one shot got fired by his head it also goes to all of the other shots so i i i do think it matters in that respect how does it affect some of the other charges that you say that it's would just be dispositive we would have to reverse everything what about again the vehicle trying to steal vehicle what's that got to the expert adds nothing to that doesn't well  if the force that mr moreno is using as force in self defense i don't think it could be force that would support attempted robbery of the vehicle for attempted robbery of that vehicle you have to intend to use force to take the vehicle if his intent in using the force is to protect himself and he's not intending to use force to take the vehicle so i think to use your excuse that specific count that your honor brought up same thing with attempted robbery of the gun i mean if he's just trying to get the gun away from him and not have it be used against him i don't think he's using force to try to take the gun let a lot of take the gun permanently which starts getting into some of my attempted robbery element issues of the district court did not have a deliberate hearing with respect to this testimony is that right correct are we able to view the expert's report and evaluate it ourselves or do we would we have to send it back unless you had a really clear extensive record you cannot do the daubert analysis yourself and i don't think there's any way you have that sort of record here that's the estate a barbarian and christian cases that i cite in my brief those cases also you say you can't send it back for what they call a post  daubert hearing you can't send it back for the court to do the dour hearing after the fact so i think the christian case in the ex the state of barbering cases are pretty clear on that you're on let me ask you this is  g your argument the expert report prevails and we had to reverse on that grounds would we need to even reach the other issues dealing with instructions no pretty strong support here for some of the experts testimony coming in he has an extensive law enforcement background and include expert testimony on shooting reconstruction and involuntary discharge he spent so much time looking at the evidence that th ey ended up not being able to get his report done till a few days before trial so i'll say the rest of my time for rebuttal unless the court has questions money your honors angela will reach appearing on behalf of the united states with the court's permission i'll begin where the defense council did with regard to the excessive force argument and i would submit to the court that judge defendant is not entitled to any instruction in his chosen language but simply the inquiry is whether the instructions given adequately covers the defendant's theory of the event but doesn't the spam court decision clearly say that in this situation something more than the standard instruction is necessary the defendant's requested instruction number four reads a person has a right to resist an officer who is using excessive force where in the in the pattern instruction that was given is there a explanation that that so well first of all we look to the fact that that instruction has to be supported not only by law but also in fact span were drastically different to then in this particular case and in this case the excessive force instruction would not apply because there wasn't evidence of resisting excessive force in fact it was it was anything but court decide as a matter of law there was no excessive force under these facts i believe that the court could given that given the facts because even the defendant's own statements were not that that he believed the author  off the officer was going to shoot him he was more worried of an accidental discharge an accident or someone getting shot by mistake which would not of course accidental conduct is not really rise to the volition needed for forces in the loftus or pulls out his gun and point of that you are always going to be a question of whether that is excessive force under the circumstances again i think it would be if us something that's very particular to that to the  facts at issue in this case here under the circumstances we have an officer who is alone in a remote area with two individuals that he that one of which is being combative is being non is not is not complying with his commands is repeatedly telling him in fact i believe the defendant in his own statement said five or six times he told me to get down and i said no so the defendant is admitting that he's resisting the officer that he's telling  officer no i'm not going to comply no i want to i'm going to go back to mexico so under these circumstances the officer that who is alone in this remote area and has two subjects one of whom is being combative i would submit to the court that it's not excessive force instruction would be that a defendant has a right to resist here we have much more than resistance we have the defendant by his own statements saying that he knocked the officer down with all the force he had i don't believe it was on  or record page ninety nine he stated when asked on a scale of one to ten how much force he said he used to ten he repeatedly talks about how that he used how much force he used against the officer that he punched the officer that he knocked the officer down again this isn't resisting this is actively using force against the officer so even if that was given that would not have first of all had not have made a difference because the facts are oh so much farther beyond resistance but the judge did not abuse its discretion in not giving this instruction under the under the facts because it was not covered this is not resisting excessive force this is actively employing force against the officer and certainly if the if the jury were to believe the defendant that he reasonably believed that he was in danger of death or serious bodily injury that self defense destruction instruction as  excessive force now having said that clearly you make a strong argument that there was no excessive force but the district court didn't find that and i think it would be unlikely the poet court would make findings of fact in that regard so you're kind of bound by an issue for which apparently there's no instruction to govern it is that where we are and again your honor i i we it's our position that the self defense an instruction does govern it it does because because the even if there is excessive force there the response does still has to be reasonable and excessive force does not give a defendant carte blanche to then do whatever he wants for instance  defendant who believes that an officer is using excessive force by drawing his gun doesn't have the right to use as much force as he possibly can and take the officer's gun away from him there's no support for that as a defense again resisting perhaps but that goes against so much farther beyond resisting that it's completely in a pleasurable under the facts in this case in your honor even if there was an issue of excessive force which although the court didn't expressly make a finding i think the leave by rejecting the the instruction as proposed by the defendant i'm although it wasn't expressly the finding was an expressively made it does i think the court did determine that it was not appropriate in this case  that the air would be harmless because again had the jury believe the defendant's although inconsistent version of events to the bet if they were and to believe the best statements toward to the defend that the defendant made to his theory they would acquitted the defendant on the self defense instruction because those that claim that he believed the officer was going to lose a bullet or accidentally shoot someone that claim would have been in facts false clips wearily within the self defense instruction have the defendant be been believed and we submit that to answer one of the court's earlier questions all of the charges except for the legal reentry charge were based on the force from the fight as as the defense said not resisting but actual force that was employed by the defendant and we would agree with the poem if we conclude the instruction was improper it would affect all counts except for the real it would affect all counts your honor if if it wasn't improper and if it wasn't harmless and again we would point out that a recount with regard to the robbery count it is of course our theory that the force employed  the robbery was the force that the defendant used against the officer in this in this fight and so that was the right both robbery counts stem from that pattern essentially this pattern that the defendant and gauge and throughout the  throughout the encounter of using force against the agent all in furtherance by his own statements to try to get away because he didn't want to go to prison because he was in the country illegally he by his own statements didn't even want to do six months so that's why he did all what he called the all the stupidities that i did and that i shouldn't have done in his words so again this is again active force for the and by the defendant's own statements not because the officer was using excessive force against him or the defendant even perceived excessive force but the because the defendant did not want to go to prison and that was his theme consistently throughout his statement he became inconsistent on many many times that first once claimed he never went into the vehicle until he was told that there were cameras in the vehicle then then admitted to that it initially claimed that the officer fell to the ground then it made it he pushed him with all this force so again he's very inconsistent but the one thing he's consistent about throughout his rather lengthy statement is that he did all of these things to avoid being caught and avoid having going back to prison and from the moment he the officer first told him to put his hands up or to get on the ground he said he said no i'm going back to mexico and that was his desire the entire time not any any or sort of perceived excessive force any sort of perceived unlawful force but his desire to simply get away and get back to mexico to avoid being caught and avoid going to  court had a scheduling order in place this was a february of two thousand and fifteen the defendant didn't comply with it he did not comply with the government's riess quest that was filed timely pursuant to the sky every order the officers report well first of all the notice of the officer i'm sorry of the proposed expert was given less than three weeks before trial the the actual reports an opinion was filed two business days before a trial the thursday before a monday trial strong arguments to that effect but what do you do with the case law in the ninth circuit that said unless it's wolf one blade violation that you you can't do it just on a discovery since august of this weapon that the defense chose not to have its expert look at the weapon in fact the defense first asked to have the person that they had not disclosed as an expert just but retained to help with the investigation and in opportunity to retain an expert to consult with an expert to file a notice of an expert and chose not to do so well let me read from a bell dalzell exclusion of a witness as a sanction is generally appropriate only in court made no findings of whether the violations were willful or blatant or book while the court perhaps again didn't use that language i would think i would submit that that language it did use when showing all the steps and all that the points along the way w defendant did not chose to not comply that that in essence is a finding and i just wanted to also point out that the only charge that this had bearing on was the charge of attempted murder which the jury hung on him the government eventually dismissed so this had no effect on the other charges because his opinion which essentially was that the first shot was one of a sympathetic squeeze or an intentional discharge would only go to the defendant's intent whether or not he intended to kill the officer all of the other charges the assault charge that was a stablished by other evidence and that first shot whether that first shot was intentional or not would not have but doesn't the expert testimony or proposed test morning deal with all of i hear on you how can you separate out that testimony because with regard to that first shot that's what whether the defendant again had the intent to kill the officer when the gun was fired versus versus some other reason for the shots being fired the assault still happens when the defendant pushes him down with all his force and takes the gun away from him twenty four c count still applies because the defendant stated he took the gun during the struggle while he was he was firing the gun while he was fighting with the officer did you make this harmlessness argument in your brief it seemed to me that it's a pretty good argument but i didn't actually see you ar testimony because it would not have effect in the court did find and we did i believe raised in our briefs quite the court had questions whether these opinions would even be relevant as to as to the charges here see that i am over my time i'm not sure if any further questions thank you harmless error in this argument but it wasn't harmless here first of all the shot that was supposedly trying to kill the officer the gun being in its chest where he said he pushed it to the side that was actually the third shot not the first shot i think more important here this sympathetic squeeze response would have put a whole different tenor on the encounter if what you believe is these shots are all going off accidentally at least the first three or four and then mr moreno is panicking he's trying to get rid of all the other bullets in the gun that paints a whole different picture if it gives the jury back there and deliberations a whole different different take on the case so it's it's almost like a gestalt thing the gestalt becomes completely different if you start believing that's what happened there's no way first of all your honor judge really you're right there was no finding of a willful violation there has to be a finding by the district court there isn't except there's a difference between a sanction and simply enforcing of discovery or and w r grace for example that s the basically so we're forcing the discovery i think if the shoe were reversed you'd be argued vehemently on the other side that this was the too late a disclosure lawyer you did have a chance you didn't have a chance to respond well i mean i am sympathetic to two courts saying look we need to enforce our discovery orders and fairness to everybody and i was wrong with that and the court certainly could have ordered a continuance or done something the question is whether you can and the problem of w r grace is different because there is a different issue with the defendant because there's a constitutional right to rebut it defense and i guess yes in a sense defendants are better off than government but of course defendants are going to go to prison for forty three years and the government isn't so i mean you just and always violate deadlines no not willfully and not on purpose but when it's inadvertent or accidental or even negligent yes what's what's in it for about this i'm sorry what's in it for what's inadvertent about first of all the discovery order your honor gets issued five months before trial right and all of sudden gets three weeks so if you don't already have this expert you think enough and you got to scramble and do it in three weeks you could ask for a continuance then or some kind of extension i mean you could say with that's too short to have an extension i didn't see anything like that in the record and maybe that's what the defense should have done on the other hand part of the delay here it was not just the defense if you read the record they had problems setting up appointments because the evidence was in a different city than the i i guess to some extent i think the rule is maybe a stronger but i've certainly w r grace noted the distinction because w r grace didn't reject family in that context it distinguished family as involving the defendant's constitutional right so w r grace didn't respond by saying that order was different the order in w r grace was different too it didn't you know you still have the problem of this order incorporates rule sixteen's intends language and the question that was discussed in swartz about whether you can intend to use evidence or an expert that you don't already have so basically your position is that discovery orders are meaningless the defendants that you can you can just say ok we came up with this expert late i'm sorry let's put it up well first of all if you had the expert four months ahead of time he didn't disclose and the discovery order would certainly bar government needed more time always has the option of giving the government more time by delaying the trial so it's not like there's no other remedy for it except rounders the effect of discovery order for someone meaningless under your  theory it doesn't render it meaningless it renders it qualified it does mean that if a defendant in good faith doesn't come up with this expert or maybe the idea of the expert until later he doesn't get precluded as opposed to some other sanction let me ask a different question different topic do you think drawing a firearm along constitutes excessive force is there a case that i think it's something a jury could find was excessive force under the circumstances have any case that were just simply officer reasons a firearm and that's considered excessive force i don't know of a case off the cuff one way or the other on that your honor and if there if that is not excessive force simply drawing a firearm doesn't your whole theory fall well you you'd have to have a jury be able to find excessive force which of course you know that's a little bit different than it being excessive force it can be excessive force and looking at are qualified immunity cases i just don't think the supreme or whatever say the drawing of his full on is excessive force in violation of constitution one of the qualified immunity contacts i  mean it's sort of similar here right but what i was going to say that on the qualified immunity context what you're looking at is whether an officer would know that you're not looking at whether a jury might find it from you know what you find you know you might decide and the constitutional violation here what we're talking about is whether a jury could have a reasonable doubt about whether a reasonable person could believe that his life is in danger when this office defense but in the context of an officer it has to be force that six not in a case where there is no instruction about officer being immune from this kind of defense i mean that in i mean you're relying on a case in which the jury was told if it's an officer you can use  except that wasn't told here except the part of the case i'm relying on is the part of the case that says an instruction with the unlawful language doesn't tell the jury excessive force again you don't need to get there if you with a if you rule in our favor on the discovery issue i do really think judge thomas that that i'm skeptical about this but go ahead i just don't think this case law becomes inapplicable when it's an order instead of a rule that the same constitutional right of the defendant and the schwarz case where i talk about the intense language making it not a discovery violation is actually also a court discovery order as opposed to a rule sixteen