mystery and because all this was only able to confront him and test him test the witness to determine in fact whether he spoke spanish at all he could accurately convey these incriminating statements and then secondly whether suppression and then finally the district court in this case was faced with unmanageable court congestion and have no ability to set a trial date within the speedy trial act the seventy days required what the district court did is set a date one hundred thirty days beyond indictment and ultimately the case was heard one hundred forty five days beyond indictment but that this report declined to rule on motions under the belief that simply leaving motions pending would keep the date within compliance of the speedy trial suggest but to show exactly what words were used and whether those complied with miranda whether the four admonitions were actually given and then were given in language in the sounds that were made were comprehensible to a spanish speaker what i what the translator to translate that into the whether the translator could get it correctly essentially we ask him to actually use the foreign language words that he said he used with mr and reasons all of this and then to the extent that that made sense  spanish then the interpreter would create an english record so that this court most importantly could conduct the noble review to see if the forewarning the fact complied with miranda to see if he actually did give proper miranda warnings so  foundation that necessarily called into question the speaker's ability to spanish everything which to the contrary was first in its classy use spanish daily in his routine etc so why would it be an abuse for the court to say look if we're going to have to have double interpreters every time if there's a spanish speaking agent in the southern district of california we might as well just you know hire every spanish speaking united states to come in here and been interpreters will shut down whether the agency provided its language that they convey the miranda warnings right and for that reason we can't simply rely on the agent saying i gave miranda warnings with x that actually have a record of what those warnings were so that this court preliminary because we actually have to have some record in order to make the decision then ultimately it's considered a noble review but let's take the course point if the court was inclined to consider it abuse of discretion i would argue that it would simply not take a speak spanish instead of english we shouldn't be left with the agents word that he did give proper warnings just ran we should be able to have those warnings contained in the record i mean if if the officer read the card and could you that an english speaking officer saying i gave the warning in english and i always read it even though i have memorized i always read it here's the card and until until your client puts into question that he didn't understand the the warning but that's a different that's a different  spanish according to the agent and why see there's two levels of analysis to it is first see the car i saw the car then i'm not going to represent to the court that the english version didn't comply with miranda but my recollection is that they probably did  if i had a card in perfect russian with perfect grammar and it and it was flawless i would still be hopeless if i was trying to make sounds in russian that made sense to a russian speaker so even if we were to assume that the card isn't perfect spanish and does comply with miranda we still need to discover whether this agent does have the ability to make sounds that make sense and we have the same problem in english when we even if we had a native english speaker we had an english card that he purported to have whispered every other word so that it was that the whole message was garbled i mean there's that there's a number of scenarios we can create all of all in english with with with native speakers on one side down the other i suppose so but i would say that that's le harmlessness certainly are to begin with one of the government's key premises is that there were identical statements given in the field as well as opposed to miranda and that even if the course of presses post miranda said that he had been deported before you fortune of course is one of the elements of the offense and it's an element that was completely not addressed in the statements in the seal so the government gain an entire element of the offense and used that heavily against him in their closing argument you have the right to an attorney free of cost it will be appointed to you just a few moments to clarify it for the criminal proper to expect not exactly what miranda step for had just as if you cannot afford an attorney and you wish one that you may one day be instructions to the extent we're getting conflicting instructions we've got them three hours apart why isn't the second one the one that should stick to for concern about what comes in post miranda at least he's been perrott properly given instructions that you can have an attorney appointed for you if you wish what the problem your honor is that he's given both statements and there one after the other and although the government argues that there's time in between the same one cruise court held explicitly that the issue of time is not dispositive and the holding cruise is when contradictory warnings are given whether before simultaneous or after the miranda warning the onus is on the government to clarify the difference between the two and that was the exact back out and from san juan cruz the agent said that he gave miranda second now whether it was a few moments later or a few hours later san juan cruz was very very clear that the onus is on the government to clarify and the record is clear that the agent mark did nothing to clarify he simply read the two dissipate any problem with the former warning but in the case where there are literally one after another in terms of the agent contact with the person and it is still within the same total setting again i rely very much on san juan cruz who says the onus is on the government argument was that there were actually new elements of the offense and new information contained in the miranda statement but secondly our argument that we couldn't determine the age of proficiency in spanish undermines both statement the fact is that while mr anderson's office the not allowed to confront the agent any more than he was at the motion hearing the court will recall that at the motion hearing the district court said whether he presented channel spanish with a question for the jury and then at the jury trial he said whether they speak spanish or something that r v the term and as a legal issue and i'm not going to let you cross examined either the reason it's important is because under model jury instruction four point one the jury charged with determining number one whether an incriminating statement was made at all and then number two the circumstances surrounding the statement and how much weight to give to the statement that's our position that the jury can't be fair let me ask you evaluate whether it was really made paper cards or documents to reach vanished to mr emerson dollars he also testified that he would quote paraphrase some of these portions despite this testimony that he wouldn't feel comfortable speaking from memory what's important is that english report and then give that english version of mr and receives all of this testimony at trial so argument fundamentally is because we weren't allowed to just see if he can speak spanish at all the first statements are suspect under the confrontation district court fundamentally was faced with the problem that it couldn't give a date that complied with a speedy trial at the first motion hearing the defense here and i have here and i said we're ready to proceed motions today the course is well we have a trial date and i said me the defendant specifically said that we need a hearing to resolve it in sort of colluded with the government and the and the district court to keep speedy trial open now in this case nobody asked me if i agreed to the exclusion of time no one asked what i thought about it and i certainly didn't request to continue with those who are thinking of probably i will probably what i'm thinking about is my calendar and i probably work for my personal calendar but the fact is that that shouldn't be taken thousand and five not mistaken the defendant actually moved for a continuance and twice on two occasions was the one who motivated that the lay and i think that in this case i didn't do anything like that now there's two reasons why under speedy trial the case should been dismissed one well there's actually three but i think in fairness the weather these delay resulted from motions  ltimately i think it's important that the the district court apparently earnestly believe that as long as two motions were left unresolved that it was fine to continue the trial date on the strictures of speedy trial now december second when the court talk to them but let me let me but i digress i think once again when the miranda warnings were given in this case after each right was given the defendant was asked do you understand them and he said yes and that was done after every single right the this defendant did not ask any questions he signed a written waiver which was presented was explained to him and he signed it i'm so clearly that's what you have in the itself and is there any thought i don't know the answer to that in the record doesn't show that now also i like that to submit that it's the same one cruise case is distinguishable from this one in that  situation in this situation you don't have that you have him you have been warned of his ministry of rice three and a half hours later after him he sat in the cell just fine self he is given the  and was one given the administrative admonition and according to the opinion soon thereafter was given as his miranda warnings the instructions were read to him one after the other and the court in san juan cruz found it the totality of the circumstances said that that or told that court that that was a stressful situation in which somebody is going to not be expected to sort this whole thing out we don't have that here harmless error argument pertains to the spanish translation situation it's the same situation we don't need to worry about and i might also say that with just briefly with the with the the spanish  speedy trial issue clearly you've got a situation here where the where the district court at e r thirty nine simply said  we have a trial date no we don't i'm going to put the motions over and defense counsel says that's fine and very actor to make a difference whether whether councils approve it or not what  something about i mean that in terms of the legal analysis does does councils objections of that have any consequences court at that point under an obligation to make that the day's work in the court may well i i hear your objection c continued in any one of a number of cases with the agreement of all parties and that's what happened here that the motions were continued with agreement of all parties and sadly the the there was no notice to anybody  defense council wanted to withdraw from that from that agreement until after the speedy trial act and our time had expired so in other words the the the court by that at that point in time was in no position to correct it and that's because the motion the motion do i have to dismiss was filed on february the eighteenth and with the end with the with the statement that the trial should have occurred on or before january the sixteenth so by by then it was almost a month out of out of compliance with the with the seventy days and by that point time nobody could do anything about it but before that nobody in heard anything from the defense but two and a continuance on motions on evidentially motions that unless something is said before the try to speed trial act time period expires if there has to be some notice that there's going to be a withdraw from that early november of two thousand and two and i november the thirteenth the motions were filed and they were set to be heard on december the second that the december the second hearing occurs and they simply in and the judge says of we've got a trial date no we don't i'm going to step if we're going to have a motions and women a guest put all the motions over until the until the motion lemony date which was on february the twenty fifth i believe  not quote ok under climb or just continue motions if they're reasonable or if there's no reason for a climate in saying that the supreme court didn't say that in henderson what the supreme court said was congress didn't wri