respect to the conspiracy count there was no planning proven there was and it was the entirely spontaneous incident there was no testimony that anyone heard saw or experienced any kind of encouragement or direction from kathy scott she directed the two probationary officers in the room right she according to the testimony she directed them into the bubble which was this from which everything was visible so there's no indication that that is any kind of part of any conspiracy i mean their probationary employees and for her watering them to go into a glassed enclosure from which the entire thing is visible cannot be considered an act in furtherance of a conspiracy or direction to anyone to do anything improper the direction that the other direction that she gave was when an officer whose name was rosario was having trouble getting a hold of the resisting inmates legs she ordered cosmin and loudly who wrote to other officers to engage in something called a leg lock to hold the inmates legs and it was after that instruction that other officer spontaneously kicked and struck the inmate nothing in scott was putting a handcuff on the right arm of the inmate while he had his left arm and was refusing to allow it to be removed from underneath his body so nothing in the in the fact that she was trying to restrain an inmate who was resisting indicates that she was engaged in any conspiracy because the the injury to the inmate according to the government's evidence took place after that so so this really was no proof of any tacit agreement of course the government was relying on tacit agreement who's there was no explicit agreement on a group assault i mean isn't it reasonable to conclude that they had reached an understanding about what they were doing no because there was no nobody said we all knew what we were going to do nobody said that the defendant urged us to hit him or hold him down so we can get him or anything like that why is it necessary that's not what's required and well there was no evidence to that affirmative evidence that she did anything to encourage lead supervise or anything like that with respect to that also relates to leadership point which is a sentencing issue and and the restraint point because there was no proof that the restraint that my client engaged in was intended to allow or facilitate an assault so these are just you know because the court disapproved of the assault the conviction was allowed to stand notwithstanding that there was no proof that my client joined a conspiracy or aid and abet it is substantive offense because there was that statute requires as armor supreme court says that someone engage in an affirmative act and the jury instructions permitted a failure to act which is not the law he took the court misstated and indicated that a failure to act to do something with a bad purpose was enough but that is not what is required and the reason it's not required that that's not is what is required is because section t requires an affirmative act and to fail to act is not enough unless the statute requires someone to do something like to register as a sex i thought your client helped to restrain  mr moore and ordered mr laurie yes to assist well there were other officers that were involved and he was there was no what was happening was forgive me for what was happening was that the inmate was resisting being locked into a cell they took him to the ground he was resisting being restrained he didn't want to be handcuffed so he was refusing to allow his left arm to come out from under his body and so she's trying to get his left arm out and put and put his right hand or before before it's itself war and so this is you know why i'm saying that the government's argument is essentially because the that she was trying to lawfully restrain the inmate and then afterwards there was an assault therefore that my client did the restraint in order to facilitate the assault but there was no such proof in the case so and this is this is the same kinds of issues come up with respect to the sentencing because the court impose leadership role on the basis of her status as a correction sergeant but in fact there was nothing that she did to lead the enterprise and the court below basically found that because she was a supervisor that her very status as a supervisor and failing to act gave the green light the ports and that was enough but that is have a larger share of some kind of benefit out of that than anybody else all of the factors that are in the sentencing guidelines cannot be checked off with respect to kathy scott it's only her i'm sorry i mean it's  she also according to testimony the trial directed others to lie about what happened when she led the cover up right so so what we've said is that there is a grouping issue with respect to that so even if a leader with respect to the false find the court were to find that the leadership with respect to the assault was improper they would have to be procedural error and re sentencing because the leadership with respect to the full statement counts results in a much lower guideline r defendant appellee george santiago jr your honors i advanced for arguments in my brief i want to start by discussing the ineffective assistance of counsel argument explained to them the that you met mr santiago because he had just returned from being locked out were disciplined for a prior use of force answer yeah that's one of things i said yes now this case is about my client a former corrections officer at downstate in fishkill beating up an inmate with other corrections officers and the clear blue sky for no strategic reason the here well i don't object to remanding for further development of the record in the district court well maybe this would be in the district court well i think you have the power to remand it for an evidentiary hearing to furthe develop the facts if that were necessary but i don't think that's necessary here because you have this performance by the defense lawyer and the government tries to excuse the conduct and the performance by saying well he was trying to make roberta brown one of the three eyewitnesses look like a liar now that's crazy branson exculpatory witness primarily for my client mr roboto brown says punched more while he was on the ground but don't you think the result probably would have been different if the jury believed brown that it was caused by my client who delivered the soccer style kick and thus that testimony conflicts with cozzens testimony who puts the blame on my client and the only other witness is laurie who has his eyes closed during the kick which was the main evidence against my client as to the civil rights bad act evidence that would have never been before the jury is to make brown look like a liar when the point is it that you're going to be faced with that choice either way both you and the government are going to have to say that he lied about some things and told the truth about others  if i was if i was a defense lawyer at trial i would say brown was telling brown was telling the truth as he remembered it ok perhaps he was mistaken about this one punch ok however because of his testimony you can't credit the testimony of the other two prosecution witnesses and the defense lawyer gave up that whole argument by trying to destroy the one witness that primarily helped this c quick just in terms of the sufficiency argument your honour's this is the best case i think to guide us on this matter in the press day that's a case where you have a conspiracy ripening where you have a corrections officer at the m d c in brooklyn who says to an inmate take the shirt off your dreadlocks the inmate refuses and that corrections officer says ok i'll show you goes to his colleague scott actions officer says we're going to teach this guy less and returns a half hour later to the court to the inmate cell and they give him a beating to punish him for not following their direction that's a situation where you have planning you have time for the understanding to develop here this is a plain vanilla assault with no words forming an agreement no tacit or other indications nonverbal conduct there's nothing if this is a conspiracy to violate civil rights that any time two people beat somebody up it's a well as others who were charged committed a brutal and unjustified assault upon an inmate at the state correctional facility among other things it was there was no resistance his counsel tries to argue in this case not resistance that would justify the excessive amount of force that was used in this case as we lay out in our brief mr moore objected to being put into a cell he was a fifty four year old man at the time and the cells were for reserved for inmates with mental health issues he did not have any mental health issues he became verbal and he objected but he never attempted to assault  strike or inflict any kind of injury on any of the officers his his resistance was verbal and nothing more than that and one of the officers carson morris who pled guilty before the trial in this case  had enough of his got into a verbal dispute with him about that had enough of what he was complaining about and started the assault in this case by punching mr moore in the chest knocking him back out and that's when mr santiago  s starts as soon as mr santiago jumps in after mr moore was assaulted by morris and forces him to the ground that's when it starts and once he's on the ground how does it start there how is that an agreement inmates they are trained on how to use force and when not to use force against inmates the use of force by morris was unjustified and excessive once he started the assault and santiago joined  and the others joined including scott as they each joined in they joined was clearly an unlawful act the assault upon more knowing full well that if you use excessive force against an inmate you're violating that tacitly agreed to the assault well as they start joining and continue the assault young lawful conduct it's a decision they make but at the very least there's a point at which scott directs the probationary know who they were he was brand new in the facility had only worked there for a few days so his mistaking one officer for another is quite understandable and obviously that was argued in the trial court and punched him in various parts of his  amendment the right to be free from cruel and unusual punishment there's a concomitant responsibility and a legal duty of those who have custody over such persons to make sure that they are not assaulted and excessive force is even vote our proof at trial clearly established a superior ranking officer she had an obligation if she observed other officers engaging in the use of excessive force that she had an here certainly she had that obligation and she was the only ranking she was the highest ranking officer involved in this incident and we had testimony from a training officer and from her superior officer testifying who t to it's an important factor i'm not suggesting it's not but it's not merely because she was it was not merely because she was the ranking officer and didn't stop it she facilitated by restraining the other people who honor and as my opponent has just pointed out the order to for the trainees to go into the bubble was before any assault of conduct or serious assault of conduct in the case the initial push or punch to a more was not alleged holist any injury to him this is maurice's push the gentleman fell down but the there is no reasonable view of the evidence that ordering the trainees into the bubble where they would have a full view of this incident was to facilitate encourage or promote a later assault which was entirely spontaneous after they were trying to restrain lawfully restrain this inmate and i also want to point out that the th and then that is a prohibition against cruel and unusual punishment it's not an affirmative duty it's a prohibition it doesn't call on someone to do something it calls on on states or state actors not to to inflict cruel and unusual punishment so in that way even if the government wants it to the that particular civil right is a prohibition and not an affirmative act and not not a your honour's i just want to make a quick point about the restraint enhanced which was imposed against mr santiago i think the record is clear that  officers were had handcuffed one of his wrists and had put him in the leg lock to gain control of him otherwise why are they  situation where if this was a bank robbery i would agree with your honor and they were talking somebody up but these are corrections officers who have a legal duty and obligation to control inmates and they were trying to get him into cover this situation they weren't thinking about inmates and corrections officers where inmates by definition are restrained and confined they were talking about robbing banks and such and so i think this is as i said my papers a fish out