calendars are all submitted and i'm judge wesley i'm standing in for judge joe brown who's who's presiding presiding from afar for reasons couldn't be into new york today and will have arguments in two cases u nited states versus brian c involves a lot of sort of novel issues i'd like to start with the issue of respect and with respect to the court's charge that to crystallize the problem here pursuant to the court's charge that was given in this case the jury could have convicted defendant of deprivation of rights under color of law with death resulting under the enhanced penalty provision of section two forty two even if found that only bodily injury not death was forseeable and even if it found the given spears condition in the preceding takedown defendant's kicks did not actually cause death in other words the problem here was that as the charge was given  wrecked of the bali entry aspect to the charges not objected to by your predecessor well that i write that's not entirely true well let me be more specific and what's more the words bodily injury that aspect of the charge objected to so what was object yes yes no well not not explicitly in the way that i'm doing in the brief but what i would what i would actually suggest is that if you look at the request to charge and i'm not talking about the pretrial request to charge but at the charge conference just a day before the charge was actually given there was a request to charge here and that request to charge specifically asked that death that the charge that be given i'm sorry is that death quote death was a natural and forseeable result of the acts that were intended to deprive ronald speer of his constitutional rights so that was just a day before death was forseeable and also explicitly requested language quote th death could be expected to follow as a natural consequence let me ask you this what was sure what was the defendant's theory of the case in front of the jury so the defendant's theory was that the death in this case was caused by the proceeding take down that he was at before he was assaulted well that's not entirely true either so what wait a second what happens here is there's a there's a bit of a dust up between mr cole and the victim  defendant serious that he's deaf to that he's the victim is dead at the time he's on the floor before he's a song actually it's of the defendant's this is why i'm drugs very subtle distinction to that the defendant's theory as testified by his expert was that death is actually a process so because the only element that was at issue here was causation but the defendant actually argued was that death was irreversibly caused by the preceding takedown in other words there was a cat t surge that resulted in this incredible stress on his heart his heart was already in a weakened condition or was it was assault with the sole cause as opposed to a competing exactly exactly so now and there was a competing theory from the government that the death could have been caused by the by the repeated blows to the had the officer call it administered to this person who is restrained and on the floor correct your honor and so but with respect to the foreseeability element the defendant's theory in this case and the reason that actually i think even under play in error to the extent that that would be the standard to apply this would still be error here just on forsee ability that the problem here was the defense's theory was that cole actually did not kick the victim sufficiently hard to cause death and that was courted by a tremendous amount of medical testimony in this case there was no evidence of any extra no bruising any external abrasions any extra no cuts that you would expect to see if indeed there had been a kick with the force of a field goal which is what one of the government's witnesses testified so there was actually the argument that was being made by the defense some foreseeability was the manner in which cole actually kick the victim in the head was not sufficiently hard in order to reasonably or forseeable result in death this was also by the way supported by the fact that you know to the extent we know that independently sufficient cause of his death so that doesn't go to proximate cause which is the first requirement that goes to actual cause which is the second so what the government is trying to do here to get around what i think is the most egregious and problematic part of this charge bodily injury or death portion of the charge that's a proximate cause requirement and the government is saying we don't need to prove proximate cause which is directly contrary to the supreme court charge says the charges the government need only prove th was a natural in forseeable result of the act doesn't say that they that it was the result of the expert is a natural for civil result and the reason i think that is there is that if i had just if i just push someone gently and suddenly they have total cardiac arrest i wouldn't tell us a pain i would not nationally for see that i would either cause physical injury or death to that individual and so it's categorizing the kind of act that's necessary to have been performed and then and then you insert the causation element after that so it's not that he intends to cause that he intended to cause bodily injury but it least he understood he or she understood the have been one that would have well so it's true that definitely intent is not required however foreseeability or the proximate cause requirement which barrage the supreme court in barrage actually said was generally required which this court  this language is not about proximate causes product this language is about understanding that the act that you're performing is forseeable that you might cause bodily injury which but but then that's not enough right they still have to prove a connection to that act the death well so but my argument on that is it's actually not that it's forseeable that you might cause bodily injury what is required is that it be forseeable that you cause death that's the perceived billeted requirement and this is different and you toss them over over something or you you overturn them and then they hit their head on the ground and they die from home that's would that qualify it would not qualify for the for intended to hurt them if well that's a different so there's a combination of errors here the second problem which goes to the portion of the charge that your honor read and they kind of work in conjunction here is that in this case there actually was an exception to the but for cause requirement as well in that which was this independently sufficient cause so here you had a situation where it was possible that all that was forseeable was bodily injury not that combined with the fact that death was not the actual cause the jury could have found out of but they did there was evidence the other way yeah but the difference is that the people the government doesn't make the charge wrong it just makes and you kind of you're conflating sufficiency with the char actually run at the government 's conflating sufficiency with the charge because the fact that the evidence was legally sufficient to support their view when viewed in the light most favorable to them that in fact there was an independent official cause of death is not of this does does it have to be the only cause it does not have to be so it could be one of several there can be several proximate causes cancer that's true but ok so let's let's pursue this for a second so you've got a person who's got a cardiac condition and you punch them several times and part of the charge was wrong i'm going to actually cite the example from the united states supreme court decision in barrage that exception cannot be allowed to swallow the rule independently sufficient cause is very rare and the example that was given there is two when that kind of charges applicable at all was you have a defendant who is shot and at the same moment is simultaneously stabbed each one of those two things was clearly and incontrovertibly a cause of death and independently sufficient cause of death and keyed to the analysis they happened concurrently the reason that the government's analysis fails here in the reason that second portion of the charge was improper under the facts of this case is that there is no question that the two causes concurrent they were consecutive the takedown happened first during that takedown he stopped moving he said i can't breathe i can't breathe after after he had been clearly influenced by cattle surge that allowed this weaken man to perform one handed pushups with a two hundred fifteen a man on his back after that had a cool surge he immediately says i can't breathe i can't breathe and then at some point while officer torres is on his back and before the kicks he goes completely limp and non responsive completely that was death that was causation and whether he then engaged in a go no breathing or whether he then made sounds or moans or grunts that actually continued even after the kicks does government a trial in this matter i would like to start with the proximate cause issue that defendants also began with now their primary challenge is to the causation instruction but  those their challenge has been forfeited if not affirmatively waived below as your honor noted they did not raise an objection to the proximate cause instruction before the at the charging conference before judge prescott instead they did propose their own language that is true the judge never ruled upon that language never had cause to accept or reject because in the subsequent qual colloquy the district court inquired with defense counsel as to whether the government's charge the government's proposed proximate cause ation charge would suffice for their purposes and they said they agreed that it would so at that point they'd be forfeited or waived by affirmatively agreeing to the proposed language by the judge the judge didn't have cause to know on that record that there was an objection to the inclusion of bodily injury to the causation instruction in fact the district court would not have cause at all to know that there was even an objection to that charge so if there is any appellate review at all it's plainly under the plain error standard so under the plane air standard there has to be a reasonable probability not a possibility not a remote possibility that the requested language would have affected the outcome of the trial there is no such possibility here let's start with the fact that the jury by convicting kohl of violating section two forty two the core offense necessarily found that the he engaged in excessive force by kicking ronald spear repeatedly in the head resulting in bodily injury now the jury made that finding necessarily and it necessarily found that those kicks were of sufficient force to have killed him because they found but for causation which was indisputably charged so they have found that there was that there were kicks and they have found that the chicks were either either actually caused his death or independently sufficient in force to have caused his death given that given that record there is no reasonable possible probability that a change in instruction would have resulted in a different verdict common sense is sufficient to tell you that it's reasonably forseeable that kicking someone in the head can result in their death you don't need medical expert testimony to tell you that but in this case we actually did have such medical expert testimony and all the experts including the defendant's experts agreed that blunt force trauma to the head sufficient to cause the types of bruising on the brain that were observed in the autopsy and that the jury had had evidence of before them would have been enough to kill ronald spears this commonsense understanding is precisely why officer cole as a correctional officers train that you don't strike an inmate in the head because that can result in death they're trained in that correction officers know it so it's going to minutely forseeable if i get that but don't you also have to show that there's a connection between that and is not just that is capable of doing it but don't you have to also show that that it played roland is there and we did do that your honor the evidence was overwhelming and that the jury charge was charged both on proximate cause and but for causation in the causation instruction so the jury necessarily found that it was not just reasonable to kicks could have resulted in death but actually either did so in fact or were independently sufficient to have done so so that that was the but for element and yes there they do have to make that finding they did make that finding there was ample evidence in support of that finding the medical evidence was very clear and although the defendants try to try to make this a very complicated chain of causation in fact the line of causations very very simple mr spear was alive on the floor he was talking he was breathing he was moving he was restrained by officer torres he was still breathing he was still it was still he was still alive and then he was kicked in the head and a minute later he was dead and we had medical experts explain the mechanism of death he had bruises to his sub scapular bruises below the blow the scalp and a sub arachnoid hemorrhage which caused bleeding on to the brain the mechanism of death in that case is that when there is bleeding on to the brain there is what's called a catapult surge dr scheller testified at length about the how the catacomb affect the heart and lead to a cardiac arrest that this is a known medical phenomenon the bleeding on the brain leading to this type of hemorrhage so this this was not something that was attenuated there was there was nothing unusual perceivable about or extraordinary as to what happened here he was simply kicked in the head and he died proximately a minute later of those injuries with respect to the independence of fish and sea argument coun alluded to the charge on this is being improper i would like to reiterate the recent case law that we cited in our twenty eight day letter that has come from the sixth circuit in the eighth circuit in ewing and lewis that have both found as to the point that it was fact that this case is factually distinct from the from the end now logy that was given by the supreme court and barrage i would point out that if anything this this case is very similar to the to the facts of the forty one drug offenses such as ewing and lois because they are the courts are usually considering the effects of perhaps two doses of cocaine or or to the effects of two different types of drugs heroin and cocaine and are both sufficiently found in the bloodstream to be lethal the government's theory here was that to the extent we're talking about two separate surges of catacombs one caused by the hemorrhage and one caused by the takedown if they were both acting upon the body simultaneously in the way that cocaine and heroin maybe perhaps taken together taken shortly in time after one after the other if both are sufficiently in high doses to have caused death under the independent sufficiency theory that these courts have endorsed then the but for causations a standard has been satisfied if your hon you then the government respectfully request that the judgment of conviction be affirmed thank you ms vargas masel do two minutes so the first thing i just want to clear up is that with respect to the independent challenge to the legally sufficient cause instruction that clearly was preserved and that was preserved by virtue of the letter that was explicitly submitted raising identical arguments to what we're raising here which is namely that the exception applause only in rare circumstances that are not applicable here so that's number one so to the extent that the government tries to apply plane errors well to that that's that's not the appropriate standard there although more arguable as to the first point again the main problem here is that in conjunction what these two charges did is they allowed the jury to fully credit the defense version of the events here that the kick was not sufficiently hard to for simply cause death in other words it only would have been forseeable that it caused bodily injury and that this was not the actual cause of death and yet still to convict and so to the extent that the charge allowed the defense completely eviscerated the defense allowing the jury to credit in total the defense theory of the case and still it was plain error and it's true that this happens in conjunction when you take the two charges in conjunction with each other but it nonetheless happens here this is not like the drug cases and it's actually very different than the drug cases that were cited in the government's submission because there is a distinct difference here the language for the original part of the charge that deals with either bodily injury or with death being forseeable makes sense in the drug cases because they're the statute does not provide for enhanced penalty for death resulting as opposed to for bodily injury in this case it does and it's a big difference just the deprivation of rights is a misdemeanor one year imprisonment if bodily injury results in other words if that's forseeable and that's the result it's ten years maximum for death resulting it's a life sentence or the death penalty so to say that a person i mean that the rule that this that this the rule of law that this court would be articulating would apply to all of these cases to say that a person can be subject to the death penalty because death results from an intent to cause or from from a forseeable event of causing only bodily injury where in