may please the court it is a court is aware after twice denying the defendant's motion for acquired finding of not guilty which was pressed on all issues but was essentially argued on the contention that the government failed to prove bodily injury and a writing a false report in violation of eighteen united states code fifteen nineteen is a court is aware of the incident that took place in the cellblock was a chaotic scene it was captured by a camera in the ceiling that had no audio it was difficult to determine any amount of force it was use the situation itself from beginning to end lasted for a minute thirty seven seconds and my client was in that cell for a total of minute twenty seconds eleven of which he was essentially out of view of the camera other then the sealing camera there were three government witnesses who testified regarding force used by my client the first was jonathan y probationary officer who could have been terminated for any reason who was immunized by the government here regionally testified before the grand jury that he saw more than two but less than ten strikes it's trial he testified he saw between will testify that in other officer officer dexter was the one who applied like arns to the prisoner when in fact the video showed it was off so you'll hit that the second officer was officer masterson a fifteen year veteran who admitted to his internal affairs sergeant on video and then admitted at trial that what he remembered from the incident in what he saw on the video were two completely different things officer masterson again a fifteen year veteran testified that he did not remember officer you'll even be present and then later testified that you was present but that you was by the feet of the prisoner and my client coffin was by the head of the prisoner which was the exact opposite w the third officer was officer dexter it's important note by the way that masterson did not see any strikes did not hear and strike the third officer officer dexter and iraq combat veteran and a year veteran of the police department somebody with a master's degree who was about to graduate from law school testified that in his memory the prisoners were by the door and that his head was by the bench which again was the opposite of what happened  did not see any blows and dexter himself testified elaborately before the grand jury to going you know putting leg irons on this prisoner and struggling to get the leg irons over the genes of the prisoner when in fact it wasn't even he who put in the leg iron with that is a primary issue in terms of the insufficient evidence but i think these arguments also dovetail into the fact that the court did not give the full instruction requested under graham versus conner that i'll get to in a few minutes  if i can just just get to that lack of injury and i'll address your your issue the prisoner here jonathan leighton who was admittedly intoxicated at this time did not testify to trial heat booking want a doctor because he was entitled to that statutorily in massachusetts he said no he was taken to the point of jail and a thorough exam was given including a retinal scan nobody noted the injury two days later a very extensive  examination was done at the jail by a nurse counsel the many instruction told the jury that pain pain can be a form of bodily injury and there was evidence before the puppet government that indication that he felt pain from those going to those are pain compliance techniques in the purpose of them is to inflict some type of pain to distract the prisoner from what he's doing to get him to comply with your commands but i think in that case there was no evidence f injury to the extent there even is one would be so dim in a mist that it's not a possible violation the government could certainly be answering my question wouldn't the trial judge have had to say i am not going to follow circuit precedent i'm going to case law that judge simply could have said what's here is it's too demanding mr meet the standards for the jury i'm going to let you go forward with a misdemeanor so her rights violation but i don't think that there's an off injury here to present that to the jury so that's that's my first intention and i guess the next contention would be that although bailey is the officer it has been since two thousand and five and although the jury instructions submitted by the defendant in this case basically were from bailey i think you're looking back at least in this fact pattern sets the bar way too low in terms of physical injury and when the bailey case was decided they cited to a number of other was it had congress defined bodily injury so when one law passed on that day they put in a deficit definition of bodily injury that can consist of definition of pain no matter how temporary and then in the civil rights statute they don't and i think that by not defining it in one statute and defining in the other what congress intended what is it you go by a common law definition counsel haven't you arguably counsel here i was one of the  yes there's i believe the government argues that the bodily injury instruction to no object to was actually affirmatively agreed to below and they so it's not even  cruise on this prisoner to take a misdemeanor punishable by a year prison and all of a sudden have a felony conviction on my ten years in prison have sensitive guidelines that all the sudden raise it from a year to twenty one to twenty seven months he got he got a year and a day is that right he did he did he has the felony conviction does are going to have it now ask your question there are exhibits i take it including exhibits four and i think twelve might be thirteen but i think it's twelve those are the overhead camera videos yes in the ok the jury got to see those more times than i probably want to yes and from the alleged victim so in other words the nice stright worked and could a jury not infer from that that there is some minimal amount of pain or bodily injury if all of that is true if the jury could find that what standard is it that you're asking it changed i think we should go back to a common law definition of injury a common sense definition injury and the way the jury was instructed i believe that most of these things apply they talk about burns cuts abrasions bruises those are all injuries not some type of damage to the body and i agree that physical pain could be an injury but i think it's got to be some description of physical pain it's got to be something more than a point two on a scale of one to ten again we haven't talked to kid individual you're right there is a video it does show my client's niece striking this body and it does show the body moving closer to the wall so there was question is that that would be a jury inference are you saying the jury could not infer that or are you saying that there there needs to be some other evidence some other evidence of physical manifestation photographs or i think there should be some some other type of evidence or thresholds for why is that why should that be the case because here it's just speculation it was no if he had a bruise on his thigh if there was something to indicate that there was some type of explicitly but the government did present expert testimony but the purpose of these techniques is to inflict purpose of the techniques that are arguably visible on the video i just argue there was no evidence that there was any pain felt if i can just move on briefly to my grammar says connor argument here in the jury instruction it was submitted on page fifty two of my brief there's a number of bullet points that were presented in the proposed jury instruction regarding graham versus conner and that court indicated that they would give the substance of these but i think what the court actually gave was inadequate in light of what was presented here in if you if you look at the bullet points which come right out of the language of graham versus conner which is a law of the land in which i think the jury should have been instructed just read from graham versus conner the supreme court talks and says that not every push or shove even if i'm a waiter see unnecessary is unreasonable or in violation of the fourth amendment and the jury was never told that grammar six hundred teachers that the calculus of reasonable miss muhsin body allowance for the fact that police officers are often forced to make split second judgments and circumstances that are tense uncertain and rapidly evolving about the amount of force that is necessary in a particular situation take a second ok and i just think had the jury been instructed on this  falsified an official police report in order to impede a federal investigation under this court's law and bailey bodily injury under section two forty two includes any injury to the body no matter how temporary including physical pain  in the light most favorable to the government the evidence at trial supports the jury's finding that the defendant's intentional use of excessive force caused to suffer physical pain the government presenting an eyewitness testimony from other officers in the holding  a video that portrayed the events as well as expert testimony from the use of force expert all of which demonstrated that the defendant performs several hand strikes as well as two nice strikes pain compliance techniques intended to cause pain on john wayne while he was on the concrete floor of the holding cell the defendant repeatedly struggling despite the fact that lean was not kicking resisting were being threatening and the holding cell videos show laden's body physically moving in the way the case was presented would it have been possible for the jury to have found no bodily injury and yet there would still be a conviction or was presented in such a way that if there were no pain no bodily injury there had to  to then proceed to the felony unhandsome it can you tell me what sort of excessive force claim would not involve bodily injury have the been prosecutions misdemeanor prosecutions under the statute for with that with an excessive suspect were threatened physical force which would constitute excessive force under the facts and circumstances and yet there is no bodily injury that result from force and i think there are circumstances peeling someone impeding someone's acts that and i'm walking their ability amendment except the fourth i think there are instances as you mentioned in which there could be just a misdemeanor offense if i may briefly turn to the bodily injury instruction it's the government's position that that argument has been waived the court's instruction was consistent with the one proposed by the defendant that i didn't didn't object when the court initially gave that instruction and then when the jury came back during still liberations and asked for guidance on the issue of bodily injury the court that it would repeat the definition at that point defense counsel stated and i quote i don't disagree judge i think that's an appropriate response and but even if this quote were not to deem that argument waived its foreclosed by this court's precedent and bailey and finally as to the