because the district court heard by permitting the use of his plea of nolo contendere to the aggravated assault charge based on the same facts at issue in the civil case the second as a as a credibility issue was it not saying how can you consistently say today you did nothing wrong when back then you did not contest the charges is that an improper use a no please at that point a your i believe that that is an improper use of in the locally and i think what you said is that it goes to that you know a plea was used for credibility and i don't want to address right this moment whether i could be used for credibility pursuit rule six or nine so i don't think that's what you're asking about right now i think the way that you know of the rest i think the way the no a plea was used was in fact as if it were a prior inconsistent statement either by implication or explicitly that by pleading no in the assault case he was taking a position that was different from the position he was taking in this case and that therefore the jury would be entitled to question whether or not his position this case was consistent on the merits of the underlying claim but th i did nothing wrong that's correct your honor and that would be our interpretation rule four ten in fact is intended to to permit exactly that to happen to allow defendants to move through the criminal justice system or quickly to plead their cases without fear that their admissions in the criminal cases a civil case but no nor should you be allowed to seal off the existence and the reality of it if you want to go on the offensive if you want to sue somebody and say like mr sharif that hey i did nothing they just walked into myself or beat the heck out of me that you know ordinary notions of justice and fair play are you ought to be able to come in and say he he pled post solves how you can accept his version of it because he did he said in a criminal court i am not contesting that i saw the officers so when you say it's all about you can't use it later civil case what's wrong with  the line should be drawn off and you could use it to impeach oftens of your i think that the walker point is a little more a little bit different than the situation that we have here in the case in walker what the sixth circuit was looking at was a case where the plaintiffs in the underlying case was seeking to recover damages for a false arrest and a false imprisonment in that case the plaintiff was using the no in a civil case below so when the plaintiff in walker was doing was coming in and saying yes i accepted this penalty i accepted a jail sentence and i accepted that there was implicitly a a viable arrest but despite the fact that i accepted all of that i now want to recover money for that he said that this is the age that holds up because here your client is saying there was a fight i got beat up in the criminal court he acknowledged he assaulted the officer isn't that just walker with a very slightly difference i don't think so your honor because i think that in the walker situation what's really the focus of the analysis is that he's using exactly what he agreed to there's that there's no dispute that when you plead nolo that you agree to a conviction and that you agree to accept the punishment from that conviction so that and walker here the plaintiff in walker who was in the program offended walker had affirmatively accepted punishment and had it firmly accepted the conviction he did not he did not he did not in the course of that nolo plea where he did not in the course of that proceeding except that he committed on any underlying act and that was not in fact that all of he was relevant to in walker well and walker that he hid the use of the sort is totally inconsistent with what he had done whereas here you can say well i you know i hit him on there was an assault but in response to my hitting him they choked me they handcuffed me they so the excessive force here is not necessarily inconsistent with him saying agreeing that ok these elements or are fulfilled and roger i agree you're right your honor and the underlying the underlying conviction is not an element of the claim in this case the underlying conviction was an element of the claim and walker walker didn't frame it in that though walker language is broader than that it just says this case does not present the kind of situation contemplated by a rule for ten the use of a nolo contendere plea against the pleader any subsequent civil or criminal action which he is a against those submitting submitting a plea interpreted to be an admission which would have liability here the police not being used affirmatively by mr sharif at all he's not attempting to rely on the conviction nor is he attempting to rely on any admission implied or otherwise of liability underlying the convection all just or even i'm sorry no insurance recall that mr sharif is doing is coming into court and giving his version of events on the stand under oath which is the right  reserved by not taking a position on that in the criminal case walker says having admitted facts which would indicate no civil liability on the part of the arresting police which is what the because it was a false imprisonment between the fact of conviction and a noble police really does lead to a conviction and the plea that he sees that conviction and there may be some types of claims brought forth by a plate of who was under the noble plea where the fact of conviction and the punishment that goes with that is incompatible with the theory of the claim itself and so any really what the court is doing is a heck analysis and saying that you can't admit you can accept a conviction which implicitly accepts a valuable arrest and then come back and challenge it collaterally in a civil action that's not what's happening here are you are you that had this trial instead of involving cross examination on the no look really involved the defense lawyer saying you say you did nothing yes you were convicted of assault is that correct yes coming stemming from these same facts the same event correct yes that  been permissible i believe until you got your second question that would have been permissible your honor i think if i think that we have a little bit of wind when you when you tie the facts and when you tie the facts of the conviction to the to the facts of the assault i think that put it over the line because i think in fact there are no admitted facts underlying the conviction but the conviction itself is admissible is it not the conviction itself under this course present would certainly be admissible here well that's i think what judge jones was thinking you know of assault at a particular time and place i mean that would reveal to the jury everything that you're worried about so you know you're not prepared to concede that that would be ok are you but i think that's because the other than for truthfulness correct correct your honor and that's what and that's what we that's why the argument that we ever as we phrase is broken into multiple parts and i've been addressing this as if we're discussing the four ten portion of this we would argue that the conviction should not have been admis have to write we're going to have to if we agree with you send this back so assume for the sake of discussion that your winner is going back to for significant or sake of our argument right now the ask you what do we tell the district court about whether or not the conviction can come in you know do we do we or do is just say hey you can do that and leave the district court you g i think what it what should we tell mr gower i think there's a multiple part there's a multiple part instruction that goes the district court in the first portion of that is that the cli is presumptively inadmissible under rule for ten and that it cannot be used to impeach mr sharif as if it was a prior statement cept once done step two the fact of conviction maybe admissible and pursuant to rule six or not now what i would i would argue to your honor's that you can to have admitted ultimately the fourth rebalancing with way out in favor of excluding it if your honor should have sent it back to the district court anyway i think you can instruct that the district court should conduct they could review the admi commissioner will six or nine and apply a fourth rebalancing to the conviction to determine whether or not it should be admitted well if you're at six o nine which is where we should be because it was often asked if you have your opponent is the problem that assaults really aren't that probably probative of truthfulness we don't have before us the issue of the use of the conviction as as impeachment when he says he did nothing wrong because that was never i don't think that was ever alluded to was it i think it was your honor it was a very it was certainly in the closing argument there was an argument made that and i can direct you to the starting at page five seventy six it was argued me that he was convicted but the conviction came in for truthfulness and if and if that's not permitted then i don't want it with anything other than the  mostly yeah yeah i think the argue it i think maybe this incisive actually doesn't do justice to the prejudice that was done in the case because there was there clearly was an attempt to use to try to walk a line between using simply the conviction yet implying admission of the facts and i think that you can see it in closing at its actually join appendix five seventy seven with section starts and it says he says he didn't do a darn thing that they didn't assault the officer just gratuitously was struck yet when he had an it's in some ways couched in terms of rule six or nine but in reality it's using the position that mr sharif took as if he made an admission that prior statement and if in effect impeaching with prior statement that's not on the record it was and that's the i think be used as a prior inconsistent statement but then he tells the jury that it's only coming in on the issue of credibility and per in terms of seeing his truthfulness is not correct that's correct there's a there's a real disconnect as i said between the way that the judge instructed the jury on the relevance of the mobil plea and his initial statement as the basis for admission when the judge i mean from the outset the judge made very clear that that was the reason he was going to allow the plea to come in and that's the way he was going to instruct the jury that yes this is error harmless i mean if this goes back to the fact of the conviction it's going to come in as impeachment of he did nothing wrong if not for truthfulness just as kind of impeachment you did nothing wrong where you were you're convicted or you're not i mean this is a harmless error and i think it's to question i don't think it's harmless your honor because if it came in if the if the if the assumption from this court is that it should not have been admitted for the reasons that it was admitted i think the assumption has to be that it wouldn't have been in the record and if it wasn't in the record i think this would have been a very different case this is a fact that was touched on twice in my client's direct response to the question you're saying now the you didn't do anything wrong you can impeach by saying but you were convicted of a crime on that date i don't believe that's proper impeachment and i don't believe that as straight up and pietschmann in other words it would be it would be contrary to the rules of evidence for the district court to allow the conviction to come in in the context of cross examination where somebody points out you said you did nothing wrong were you convicted of assault you're saying that would be unlawful that's correct your honor i think the conviction can only come in p and arguably percent general six and i and then as we are getting our brief we don't think it should come in that way and so it even the fact that somebody might raise it in that context you say you did nothing wrong here's a conviction for assault saying nothing more than that that that would be improper i believe that's improper use of the conviction percentage for all or ten year yes and if i may clarify why i think that under  the way that you're using the conviction your honor in that in that cross examination is to say in effect you committed the underlying crime and i think that the course you are now simply it would certainly be the implications they would want to have drawn and that's why i'm pressing on this is the distinction between the no one plea and the conviction just one that doesn't stand up in a context like this because if you've got if you're going to say hey you were convicted on that day just like just a few minutes ago saying that i think you just the argument but it really says an independent source found that you did something wrong it's not saying whether he had made it in or not i mean he could have pled not guilty but that's not the point the point is an independent source found that he did do something certainly justifies the conviction but i think what the court has what this court said in the pullets case is that while the conviction certainly establishes the fact of conviction it can't be used to show that the plaintiff committed the underlying act all right we'll have to convictions relevant to truthfulness at all well there were actually four different assault conviction right one drug conviction and one crime in falsely convicted but they saw convictions how how are they relevant to truthfulness how could they be well u reflects however it also comes in under the standard by which the officers are being judged one of the things that the jury's instructed in excessive force cases is what the officers reasonably believed that understood some of the officers testified they were aware of mr sharif prior criminal history including assaults in this conduct while in the prison and it was permitted for that reason as well for the issue of the officers frame of mind in the response so it came in  how is that relevant for truth well i believe it comes in your honor for impeachment purposes and we go through the analysis of whether forth and you didn't argue it ph what you argued it goes as to truthfulness but i argue that he gave inconsistent statements that one were proceeding he didn't contest it which the effect of which and i think justice had mentioned previously is that it really has the effect of of a conviction and that frankly in some manner would have been or glean more damning  for the plaintiff that the conviction itself come in and i do think it has to come under six annoying well except you did use it as going to his credibility how can he say he did nothing wrong before he didn't contest it and the whole case was his credibility so you know you could say the conviction would have been more damning but also could have explained listen fact that he might have officer and then the officer reacted by handcuffing him but the fact that you specifically used it as if he had previously guilty without while maintaining his innocence mr sharif very well could have said yeah i did strike the officer but that doesn't justify them using excessive force in beating me and so forth and so on that really goes prior the one prior one of the three prior assaults and with respect just under six of mine how was this conviction treated on the contrary questions that we've already discussed i asked and mister sharif was was forewarned that if he continued to maintain as he did in this complaint as he did in his motions as he did in his opening that if you took the stand you know to maintain the position he did absolutely nothing wrong that i was permitted to then question and then about this very line of questions and so you gave this particular conviction was treated sounds was treated differently in terms of the up in terms of the detail that you were allowed to go into with respect to the to the circumstances that led up to the police yes i think i yes a total of three questions i did not get in any details i simply asked him whether he had the opportunity and in fact he did  prior court proceeding that he did absolutely absolutely nothing wrong i did not go through the details i did not as the judge i believe make clear in his will and i was not permitted to the say in fact you did this crime you're barred from  contesting it here well that's is that a fair or meaningful difference there i mean you're you or certainly logically one would think that  somebody claims i did nothing wrong that having not contested that you do that at an earlier time is something the jury might want to know about but we're not writing on a ten for tennis courts of interpreted it including the walker case which you discussed with counsel is the intent of that is not to protect a plaintiff from using it often civilly in the subsequent civil litigation rather to prevent t his excessive force and it absolutely is and mr sharif was free to argue as i often see argue in these cases i may have done something wrong yes i was i pled no contest to assault that that doesn't give them to right the right to use excessive force me he was free to do that and he didn't each owes to take a position which was contrary to the nolo plea which has the effect of the conviction and i do think that well but you didn't just you didn't just use the conviction you you argued that pretty specifically he had a chance to do something he didn't contest that and how does it square with the purpose of for ten the policy behind which seems to be you're not going to admit anything and that's and and and the incentive for you to take the conviction and the punishment is nobody's ever going to say playing in a civil case when it's being used often simply as opposed to defensively and that's the stress in what we've crossed that bridge if we disagree with you on that i think you need to respond to judge jordan's question which is you're basically saying that once you've taken all of the play you can't later say you did nothing wrong but that's the whole point of the no a plea is that you can later say you did nothing wrong and your having used it as in walker as well as actually this court in the future of our let's say i don't agree with you that worker controls here because there's nothing inconsistent with say i haven't committed an assault and you used excessive force whereas those cases are how do you square your use of the military because i believe that also under the even the doe cases the middle district case that we talked about it was not in it a miscible and it wasn't the if if mr him an example but if mr sharif had not brought the suit it certainly would not be permitted and used against them if you took the position that in fact it's all the officer but that doesn't give the officer the ability to use excessive force in response i think fourth and would work but i think it's the plane i think you're correct the plane reading that is not the situation the situation is you are saying that he is incredible he is lacking in credibility because he previously basically admitted that he did this certainly you can't do that because it's in all of play and that's what for ten is all about but i agree on the plane reading and i first time i read it i thought the same thing but as i examined case law the intent of that when it's taken in conjunction with six o nine is that it's not to be it's not it's able to be used defensively so if offensively quite frankly you were using it offensively to to undermine his credibility in my mind well i think if mr and again the sharif was given the opportunity if he said something that was inconsistent with the result of the prior criminal matter that i could have been able to use it so it was his choice i simply was cross examining him on this one inconsistent impeachment purpose from the prior criminal case is that significant that i mean for ten talks about the police six o nine talks about a conviction that and we've made much of the distinction between the plea which for ten proscribes but the fact of conviction under six zero nine law you can go beyond the fact conviction and and get into the to the to the claim that the lead that led to the conviction represented in addition to certain type of conduct that seems to be what you're sane now i think it it certainly can be used under six o nine for credibility purposes which is what the intent of the questions were mr sharif can disagree he can refuse he can explain as he did believe was incompatible with the with this with this insistence now that he did nothing wrong be that's but that's the in the inconsistent statement approach which i would suggest for ten if i think it has the same same effect it has seen room when you say it has the same effect the question isn't in the abstract how a jury might do it the question is how you use it right and and district court it was wrong for you to allow defense counsel to question about the nolo plea but we're not talking about what about rule six o nine and use of a conviction to impeach truthfulness or to the question of truthfulness generally is that is that the right thing for us to say or logically having said you can't get into it for ten do we also need to say and six or nine doesn't give you a way to get to the conviction either i think the former i think if it would go back and i would argue as well as that in brief that have been false he came in another assault name and number of other inconsistent so i characterized this as a harmless error in the scheme of the trial i think that it would come in if it goes back squarely for the very thing we talked about before a conviction because under the law it's in it's considered has the same effect as a conviction is it is it a distinction without a difference if if you a skilled trial lawyer her saying wait you pled nolo contendere e you didn't contest this did you or you say wait you were convicted there was a conviction for assault stemming from this incident on that day right is that it is not a meaningful difference i don't think it is in fact i think frankly the second way probably could be more damning if i'm sitting on the journey here that way as opposed to the first way ok and if that's true doesn't that really mean that we should tell the district court don't want this in at all because under analysis the most thorough analysis is the walker case where they say originally four ten was carved out of the conviction under six o nine or prior draft however the final draft took out that and so by implication for ten has to be ready conjunction conjunction thank you are still trying to mature we have been discussing call this earlier on i sort of point your honour's to pages five and six the reply brief where we are it's discussed and two pages five sixty six and five sixty eight of this court's opinion and i just i then skipping ahead to the end of page five sixty seven review of the applicable statutes and case law reveals that in pennsylvania a no a plea does not constitute an admission of factual guilt and thus has no evidentiary value in assessing whether the defendant committed a crime and i think that goes right to the way that the nolo plea was used in mr sharif's cross examination certainly and in the closing argument course and i read to you earlier the impeachment was not with respect to whether or not m for going back to walker very very quickly i think the key point in walker and i think the key point in all of the cases to follow walker is that the plaintiffs they are using the conviction that they accepted as an affirmative element of their case they need to show that they were convicted and that they were then incarcerated in order to recover their damages their damages are based on the improper incarceration is not the case here mr sharif would never have affirmatively lose the conviction as a sword in this case so the sort of sword shield