both the supreme court and this court have recognized the highly chorus of impact of appeals by law enforcement which pull on the parental heartstrings of in the united states feet tingle this court stated the relationship between the parent and the child and body of a promoter a primordial and fundamental value of our society similarly in brown vs harlow this court stated that it recognizes that the supreme court's decisions in haines and lyneham demonstrate the threats and promises related to one's children carry special force as to the issue of whether or not the admissions by mr wilder were were coerced by the two homeland security agents it really brings to question really what fundamental to what are we all about if you ask the question what is most important to you what is most important to everyone in this court and i suspect that most people would say what's most important are the people we love most namely our children our spouses are close family members counsel what do i do with the district court factual  i guess it's a mix question of law in fact i think it's a e r i don't know if it's two sixty three or three sixty three it's page one seventeen of the transcript of the evidence harry hearing where he states starting at line twenty one the other statements by the agents collectively reflect that the agents were merely advising the stor mile wylder of the consequences of lying and they should not seek to protect defendant overholser over that of his family and then he goes on to say there was a complete absence of any communication that could be characterized as a threat or promise or a coercive statement don't we have to find those findings to be clearly erroneous to accept your argument that  o and brown and the fact of the matter is since those are not purely issues of fact these are supreme court decisions and the thousands of this court that as a matter of law not as a matter of fact say statements such tactics are not only improper but they're highly oh coercive whatever you are you suggesting to me because i read brown a little differently maybe you can point me to some other language and obviously the situation there where you know it was a threat if you don't cooperate or if you do cooperate then maybe you can see the birth of your child so if i take your point are you saying that there's a bright line and you may not mention rule are you not i mean part and parcel of determining that the statement was made is a factual finding as to what the agents sad and the district court heard the testimony and essentially found that what they were telling your client was look it's a crime to lie to federal agents are you really going to sacrifice your family in order to protect mr overhauls and you're saying that any reference to family at all renders the interview unconstitutional and that's saying that any reference to family rendered constitutional but i am saying that as a matter of law it is highly coercive as the district court finds facts sufficient to establish coersion but isn't that inherently a factual determination that has to be made first before which is what makes it a mixed question of law in fact i think i think first of all can't be purely a factual inquiry and it can't be completely illegal inquiry that leaves us with only one analysis i think it's a question of law in fact i'd i do agree your honor that that in any any case where you have when you have issues of corrosion it is a mixed finding findings of fact and law but sometimes findings of fact could ignore the law and when judge jones didn't ignore the law here did it it was thoroughly apprised of the cases on which you're relying and it heard the testimony and it made credibility determination as to exactly what the agent sat respectfully your honor i do not believe that those findings were  legally correct because judge judge stated clearly erroneous or i don't understand what you mean by legally correct i can understand you quarrelling with the application of the law to the facts but first we have to determine what the facts were and don't you have to show that the underlying factual finding is clearly erroneous before we can then conclude that the law was impermissibly applied i think i think it's i think what you're doing here you said that could be termed threatening or chorus and as i read united states supreme court law they're all saying it's highly chorus that this is a not a good thing it's not a bright line rule but but that use of this is highly coercive but you have to p you have a challenge the fact you know that there is a finding that he was not in custody which is important so you have all these other factors doesn't that all weigh in to the basket to determine whether or not it was co certainly i think other factors do matter and in this case the fact that he was not in custody that the two homeland security agents completely turned it around they used those circumstances which normally would not be threatening completely to their advantage to use the fact that his wife was there by making statements much further than just simply saying hey if you make false statements you could end up in prison they were also suggesting that i'm all going to the family numerous numerous references to the family and i asked why else would they be doing it it's certainly not because they had a loving concern for one wilder and his family they're looking at the fact that he to protect another defendant look are you really want to sacrifice your family to protect this guy because that's essential what he's doing in at least in the in the minds of the agents at that when they're basically saying to throw them under the bus for him that's what they're saying but first of all why even bring the children in in the first place because he's lying to them about what his role was or knowledge was in regard to the offense and they and the agents know enough based on their investigation that what he's telling them is simply not supported by the evidence but they also made a statement to suggesting that warren wilder should come up with an excuse and say that he should say that he did it to support a family and because mr overholser the boss made him do it so they're even offering up an excuse which is an improper they're not think they don't know that's true they're they're saying hey come up with this excuse and they're giving the impression that if you say that if their top salesman was the nine he was so what's wrong with addressing with this person that they're investigating peculiarity motives for doing what he did it's because first of all they're suggesting he suggesting to mr wilder that he come up with an excuse and and again i think i think we're putting too much good faith in these two homeland security agents they're pros they're they understand they looked at the price your argument would forbid and officer interviewing a witness from ever suggesting to a witness there might be an explanation here you know is that this is that a is it b is it  you saying that's improper and i think when you look at the number of statements they made and you look at the church telling you the fear consensus they were using the presence of his wife they weren't using the fact that they knew to be arguing if the wife wasn't here you'd be arguing that just the opposite that that she said her absence made the interview more coercive i mean usually the presence of a third party to an interview is not something that most law enforcement officers want in that because you've got the potential now for having more than just the defendant's word against what he told the officers now we've got another witness to the interview well rather than bringing mint in in custody that's certainly changes everything but they saw what was in front of and they looked at the fact that his fellow officer and i think i think your honor it's quite powerful you're sitting quite powerful i mean you've got a supreme court cases addressing i r s interviews of a tax defendant in his living room and finding that's not a custodial interview i was it different if it's in the backyard i think that's the very point that the agents use the setting man unless you confess to this because you're not thinking about the interests of your children well you know i have to write a screenplay to come up with that scenario from of the transcript i think i mean and because i've i've read the transcript over and over i i think that there's some you know borderline issues here but then you have to look at it in the totality because the children come up also naturally such as i have to leave to go pick or we need to feel pick up the children you know he says and i think for them to say well this isn't exactly a conversation to have and from your children do you see anything wrong with that i think they saw fact i mean just like you take that that statement i mean in the course of this the children need to be picked up there's some dispute over whether they offered to adjourn the interview or not but then miss wylder said she's going and what you know so clearly but say let's say the agents come in in the kids are in the living room and they say you know we're here to investigate the situation with the cisco cables this to make that statement i think in the totality totality of the circumstances and looking at what the agents were doing there's no question that they were taking the advantage of the facts because you haven't really answered my question because it gets us back to it if you decline to answer these various scenarios we have to take your argument to mean that you want to bright line rule that the family can't be mentioned so is that what you're asking us to adopt  regarding the voluntary confession issue i think that the cases that were referenced with the palettes argument are on point i think that they speak for themselves the circumstances here come or no come nowhere near rising to the level of coercion that's required to render a statement voluntary in crawford the supreme court said that even trickery and deceit are insufficient tranter and in an interview involuntary unless stretcher promises are made the district court found that there were no threats  promises made such review for clear error and the record supports those findings it's also not disputed that he was not in custody he was told the interview was voluntary he was told he was not in custody he was told he could and interview at any time he was interviewed at his home on the back deck they dance from plainclothes to keep their weapons concealed they identified themselves he was allowed to get a drink or take a break if he needed one he was a free to move about his request his wife was allowed to sit in on the interview and voluntarily left partly to pick up the children and they were never restrained the statement regarding the children was an offhand statement made after an hour of in terror of interviewing where  said was in essence as judge mckeown characterized it you're going to throw your family under the bus in order to protect this guy right clearly there was a reason for telling the defendant you it's escalating here from a how's your kids to a conditional statement isn't it i wouldn't say that well even if you can even if you termed it as a conditional statement it's still same rice level coersion that cases have recognized as required to render a confession involuntary and also in the record is that the agents when they made that statement knew that other employees for the company had been offered things by sir to stay quiet or maybe not even to stay quiet but after the seizure they were offered time off their offer airplane tickets so in context of everything the i knew they'd also reviewed purchase orders they knew that mr wilder was a top salesman and they knew that he was involved in producing a cisco products when the when the interview first started he said you know i have nothing to do with cisco products and then later i'm sorry you think later on in the interview he  kid i think at that point they had already reviewed the emails between wilder and the chinese manufacturer with details about how to make the cables so they would they actually had not reviewed the emails at that point they didn't get into the they got into the mail around the same time as that is in the summer two thousand and twelve that they accessed them and they really didn't review them intel eight or they had however reviewed a lot of the company's records purchase orders and other documents that had mr wilders name on them and knew that he was n at some point council can you address what happened to the cables that were seized in july two thousand and twelve to the district court not consider those at all and is sentencing  i just wanted to know whether or not they were included in the last calculation and the answer is no no and they were necessary for the last calculation i will say the government in its brief to the district court did note the we tell about you of those items but the infringement amount you still get to the same infringement only need to be a reasonable estimate and it only needs to be over four hundred thousand dollars and you get there with there with or without those cables the forfeiture amount on its own which is based on the company's own records show the illicit proceeds over a five year period or about seven hundred sixteen thousand dollars and those are just the proceeds that's not including anything that was actually seized the never sold so i think the evidence is is pretty overwhelming that it's that the i'm out of that the infant and amount was far beyond four hundred thousand dollars you know and no matter which price base you use correct regardless of whether it's wholesale or sale or fair market value or you get  was estimate of the counterfeit value of the products seized only on august eighth and i was just under four hundred thousand dollars again the infringement and amount is based on the value of the infringed item in this circumstance which is the cisco retail price so and that also excludes all the other cables and all of the the records of the company that you far beyond four hundred thousand of we are submitting that such sense and findings were clearly erroneous and they would point to the fact that agent larson testified on cross examination he was asked well when someone says miss out on your their children their meaning being taken away and going to jail right says we never said that question i understand that but doesn't that imply that the answer one might imply that it is very clear that it does have a course of effect and also i think just looking at at the record in terms of the athletes and that inherent in suggesting to the defendant that if he's going to lie to cover up for his boss then it's going to have pretty severe consequences for him if he's going to sacrifice time with family versus doing time for the vase the difference the fact that it's a big difference between saying there will have b consequences for him versus they'll have become sequences for him and his family and the fact that the agents again not just an offhand remark but they repeatedly went back repeatedly went back to the issue of his family and their children and i would suggest it was more than just a helpful remark it was so much more than that it was the agents attempt to coerce the to the passion and i think that's you know that's a sense of why are they here what are they doing simply naive to just assume they were just doing it out of the goodness of their hearts to help mr wilder out they've already confronted him have they not with the fact that his denial of having anything to do cisco and some of the other things that he was saying at the beginning of the interview wasn't truthful and they warned him about lying to federal agents and the consequences of doing that right i think in isolation there's nothing wrong with doing that but again looking at the totality of the circumstances it wasn't that same man made at about the same time as this statement was made about are you going to sacrifice your family for the boss there were repeated statements