court in denying the defendant's motion to suppress the testimonial evidence and also his motion for a new trial on the same grounds the police in the skate violated the defendant's invocation o remain silent under the fifth amendment in several instances and also as a totality of the circumstances can i ask you one question mr katz of before you get into the the substance of your argument  did his girlfriend testify at either the suppression hearing or the trial i i'm not sure your honor i don't think she did but i will have to check that ok back to the right but in the first instance when the defendant was in his holding cell with agent brady and agent brady aust him whether he wished to speak and with that he wished to have an attorney present he said stop right there at that point instead of stopping right there agent brady continue to speak with the defendant and ask him questions that was clearly a violation of his of his right of invocation to remain silent look to things did at that point had she finished reading him his rights or was she in the middle of i believe i believe she had i believe she had but what's interesting about this case is that the way that the series of events unfolded as a factual matter clearly show the egregious gree just behavior of the police when the defendant  moment in time in near vicinity of where he was being placed in the police car the appellant contends that this situation which the police structured was designed to elicit statements made by the defendant and in fact to me but didn't the court find that that was not the case there was nothing improper with the manner in which the police conducted themselves that's correct let me also correct that isn't the standard of review of review much higher it is much higher your honor yes but our contention is that that that burden is met in this case is there any evidence that the the police had structured the situation in such a way to know the girlfriend present their no but but even if they had not structured it it did place the defendant in a highly vulnerable position and he did make a statement at that point off that he had stated to agent brady in the holding cell stop right there he made a statement he said it's all mine let her go how much time elapsed between the agent statements about the process and when he made the statement that you're referring to it's my understanding that he explained the process to the defendant in the holding cell and then the situation where he saw his girlfriend could downstairs but to go back to your point the second instance which i didn't mention in which his right to remain silent was violated was when after he had stated stop right there agent brady then  proceeded to explain the booking process to him and explain about going to jail and this was another situation which clearly was designed it's our contention of course it was designed to elicit statements made by the defendant well let's assume that the agent went beyond the pale in continuing to talk to him after he said stop right there to try to segment portions at that moment in time there were no statements right correct ok so the first the first the man is when he sees his girlfriend when he goes downstairs and sees her her in another car then the first inculpate restate and then there is on that follows after that you want to talk about the second one absolutely so when he was placed in the vehicle to be taken to the jail he was with agent brady and office a little field i believe at that point and they continue to at least speak in some fashion to him and it's journeying that ride to the jail that he says i'd rather have it's better to have a gun then to be than not to have a gun and be dead so each of these situations the  violation of his right to remain silent and it's the conduct of the police and we can look at the totality of the circumstances from the holding cell when he said stop right there when agent brady said to him would you like counsel and then agent brady continued to speak with him and then agent brady continue to speak about the booking process and the jail and this issue is dealt with with the case of johnson which is in my brief and then he was taken down to the sally port where he was confronted with the side of his girlfriend exactly at that same moment in time in the near vicinity of where he was and he made his first  and then he was then taken to the jail and engaged in further conversation by the police offices the one police officer does say in his testimony that it was a stream of consciousness but i'm not sure that that's the case when you read the testimony it seen any indication that those initial statements by the officers were intended to elicit responses explaining what the booking process is or that he's going to jail it's our contention that those that explanation by the police officer about the booking process and about going to jail is designed to elicit a solicitor response a police officer doesn't have to explain that to him if he asked the question where we go on he's been arrested what if he asked the question are we going in the office i think the answer is very clear they should be no onset if the defendant has invoked his right to silence they should be no statement made by the police whatsoever there should be no statement made by the police whatsoever and i and we would contend that when you look at the  the circumstances from the holding cell all the way to the right to the jail the entire time the police were were present with the defendant was designed on each occasion to elicit statements which like which initially the defendant made on this with regard to the second statement mr katz if what what do you think was the most egregious statement question comment  by either of the agents or officers that precipitated the statement i think you're on a you have to look and i hate not to answer your question to give you the answer that you're maybe looking for but you have to look at the totality of everything together because when you keep probing at some point a person is going to say something or they may sauce may say  something i don't disagree with you i think you have to look at the entire landscape and you can't isolate one thing from another but if they had remained silent in the car and said nothing to him on the way to or at the federal detention center you'd be in a different position very different right so what was it that they said as part of the totality of the circumstances between the first day but in the second statement do you remember what the record shows what the officers mentioned him so in other words between between the holding port and the drive to the jail right at the at the sally port that's when he says it's mine let her go or something like that to that effect right and then there's a second statement and my question is do you recall yes i think i think i think the most egregious statement was by agent brady office a little field recall but they did say to him at that point they told him details about the investigation they mentioned to him they told him about what bridget newman had said in the walgreen's to the store manager and that's a very very clear violation of his right to remain silent when you know after a defendant has stated that stop ri agents begin discussing the details of the investigation with him and i also think that this case is not subject to a successful harmless error analysis because if you take away those two statements you have a very different case you have a case that is based upon what one could argue is circumstantial evidence and i think the only remedy in this case is to reverse the judgment and sentence and remodelled for a please the court for a shave lee on behalf of the united states before getting into any argument like to clarify a few facts based on the discussion that just occurred and to start that off i'd like to point to one exhibit that's particularly clarifying regarding the interrogation while not interrogation the conversation rather that was had in the interview room at the police department about a week or week and a half ago there was a request from the clerk that the government some of the exhibits from the motion to suppress hearing those included several videos and audio files the government submitted those exhibits about a week and a half ago and clued in that is a video of the interrogation that occurred at the police station that's exhibit four to the motion to suppress hearing this is the this is the and after the spontaneous statements this is the conversation in the interview room where they come in and they give him the miranda warnings midway through and this is another clarification midway through the warnings the defendant makes the statement that he like to stop there is some clarifying questions by the officer he then says yeah i'd like a lawyer so then she stops with the miranda right there she had been middle of the moran and you could see that in the video and then provides him a brief description of what would happen next essentially and she explained in her testimony at the motions press hearing that that was just to be respectful and fair to the defendants in other words not take him somewhere without telling them where they were going next  so that before deciding on a route would urge the court to view that video because it is i think everything we would want out of law enforcement in that circumstance it was cordial but not overly so they weren't acting  way is the concern articulate in johnson that they may be trying to play the good guy she did the interview she did it respectfully he invoked she gave a brief some ation give a brief summation of what would happen next and then after that the mirror and defendant says that you guys out there videotaped me before and they're like oh no that wasn't us as i was just joking around with the does a little shimmy like he had been messing with the people in the camera so he was he was it was a light hearted joking exchange at their argument defense counsel said that that time period was not more than an hour between the time when there was the invocation the explanation of the criminal process that would follow and then the transportation to the interview to the holding room and then the transportation to the sally port in the transportation downs of the area where bridget newman was seen as your honour's mentioned the district court found that that encounter was in no way of arranged on the disk or made a finding that there was no evidence or no testimony showing that that was arranged so that was not an effort at all by the agents or law enforcement officers to to bring bridget neuman there and in order to coerce a confession or statement on behalf of the defendant so our contention with regard to that exchange there than as the government can proceed can succeed in one of two with me interrupt you for a second you said the defense argued at the suppression hearing that the time span was no more than an hour that's correct your honor you think that estimate was correct so the record is not entirely clear your honor there are are there time stamps saw any of the any of the video or anything like that the or did any of the officers testify  the length of time the act so there was an exhibit that would have showed it that was not the exhibit that was the exhibit that was not admitted to the motions for us hearing so that was not admitted before the court that would show the time period and between the end of the question at the end vocation and the of which the defender was taken to the sally port apart from that which is not included in the record there's a few different aspects that show there's a comment that one point that it was a short time or brief period of time there's a comment where someone says it was a few minutes and then and it's brief motion to suppress level the government stated two things they said it was at least twenty minutes and the government then also says that we know that the interview with the defendant where he  invoked ended around ten thirty two that's what the government represented and it's brief the district court level they say we know that the defendant was then taken out of the holding cell to the sally port later than ten fifty nine and  so that's what the government's representation was at the district court level and i from i mean to the extent i can can reference the exhibit that was not put into evidence at the district court level those time those specific times ten thirty two in the ten fifty nine had in my opinion had to have been taken from that video that while that was not attached to the filing and was not admitted the motion to suppress it was a explicit reference to times that are drawn from that  and so that the two ways i believe regarding the statement are called the girlfriend statement the two ways the government can prevail there is first of all this wasn't an interrogation the in order for miranda to apply there has to be custody plus interrogation interrogation is defined in n s as a statement or action by law enforcement that they should know was reasonably likely to elicit an incriminating response and applying that definition to what occurred here especially after viewing the video i don't think you could find that it was reasonably likely to lead to or solicit an incriminating response it was also true in johnson so johnson i would i would say is distinguishable than here  johnson from my reading what the court did was they said here's the course of statements that happened first law enforcement started they said do you want to know what'll happen next then law enforcement gave a brief explanation of the criminal justice process that would follow which is somewhat similar to what occurred here and then they said you know the reason the f b i is interested is because these are checks from a federally insured bank and immediately after that the response of the defendant responding to why the f b i is involved is all this trouble for just trying to get a little money and that was the incriminating statement that was admitted so the opinion goes on i mean first of all to clarify we don't have that that direct connection that was president johnson between the statement by law enforcement that was there reasonably likely to solicit a criminal response and did directly thereafter about the f b i in the check we don't have that in our case after that another difference is that in johnson the court didn't say it didn't really reason through the interrogation analysis under anise and what the court did was they as i mentioned set out this is the conversation that occurred and then they said often explanations of criminal rights like this may be a ploy by the government to be the go to guy he said often they said it may be a ploy by the government to be a good guy they didn't rule on a per se basis that this type of discussion between law enforcement in the defendant is inherently or as per se an interrogation and they didn't really give any further an explanation as to their finding apart from saying that this was inappropriate under miranda so you draw the conclusion that they must have found at some point that it was interrogation a few things we have here that they don't have that we have the video so we have a broader understanding of the of the interaction that occurred than the mere probably four or five lines and johnson where they describe the conversation what we also have is an n s a when they talk about interrogation and a couple footnotes i think section seven they explain that in a valuating interrogation it is not irrelevant the officers intent and asking the question while it is an objective test they said it's not irrelevant the officers intent and they said it is not irrelevant to the officers knowledge of the susceptibility of the defendant to questioning here we know both of those two factors they weigh in favor of the government we know from agent brady's testimony that it was not her intent to solicit in the criminal a response it was her to solicit incriminating statements and that's clear from the record of the motion to suppress hearing which is documentary ninety seven can you can i switch you over to the second statement for a minute and what did the officers or agents testified they said if anything to mr fonseca between the time they left the sally port and the time he made the second set of statements about having a gun rights of the testimony that they gave is that during that drive agent brady's up front it's a little fields in the back filling out the booking paperwork there listening to music there's no conversation because he's writing in the back they get on the highway from the aventura police department they get in the express lane there's still no conversation as they get to be a few minutes away from the f t c here downtown the defendant initiated the conversation and this is clear from the motion to suppress hearing and from the rest of money at the trial as well the motion to suppress hearing documentary ninety seven page ninety one the government asked who was the first person to make a statement about the investigation the defendant or law enforcement they answered the defendant and this was in reference to the car conversation not to the sally port conversation it was the first person to speak in that conversation the lawn for the defendant or law enforcement the defendant would what did he that he didn't as like as i remember the transcript his first deep in was not the statement about the gun right so it's i would say it's kind of there and consistency is there and if you look at the cross examination by defense at the motion to suppress hearing they said then while he is driving or you're driving this is questioning agent brady when you are driving is when he makes those statements about he knows he's a felon in possession and he carries a gun for and those statements yes that's when is it you or the officer littlefield advised him about bridget newman said to him and said about him in the water and i don't recall who responded back immediately so saying that he made these statements about the gun and then someone responded back and then they had a conversation about bridging so i think that they prepare reports i believe there were reports prepared about the conversation that was had where they introduced at the suppression hearing or not i don't believe so  so what did the officers what's the clearest version of events about who said what when the clears version of events is i believe the first one i just heard the officer was asked who was the first person to make a statement about the investigation the defendant or law enforcement the defendant who is the first person to speak in conversation the defendant or law enforcement the defendant so i think it's clear that the defendant why nobody that does that that doesn't answer everything it answers part of it but if he had said for example you know when did you guy start this investigation of me and stop there and they said we started it you know at whatever time last night he had asked anything else they can't question him then and ask him why do you have a gun right so i think to be clear first i don't think the facts come out that way no i know know they don't aching that is given i i i think there is case law that would say that some sort of conversation bordering on questioning could occur during that time period because he reinitiated now couldn't be out right interrogation but if you look at a case like i believe it was valdez where the defendant was in the cars on the way to the m c c and he says what's going to happen to me now or where are we going something along those lines and then the officer comes back home and says we're going to the m c c explains that the vet says oh that's great that's good that's better and state and then he explained some of the officer goes into and he says hey man i was a drug cases him and we know you're just doing this because you need the money we know that you're just doing this you've got to pay for your family and we're after the bigger guys so if you talk to war and you want to come cooperate then i think that makes sense for you to do something along those lines and then he immediately after says yeah i was i was only doing it for the money i got a mortgage i got a wife i got a kid and that statement was held to be admissible so some sort of interaction  always the defendant reinitiate says there is some sort of interaction that's all out there and here i don't think we have to go that far because i think the defendant in this she added with the statement that's at issue but if the court were to find you think he made that statement first i was the first thing he said in the car without any prompting as opposed to a precursor statement than then led to the admission so it may not have just been that there could have been some sort of conversation that or him saying some sort of lead and statement and then that without the government giving any sort of any sort of question or course of statement but what i do think is that the district court level they found that it was a spontaneous statement so that says to me that this wasn't something that was in response to law enforcement interaction or law enforcement questioning but that this was spontaneous and i think the spawn navys of factual findings by the district court as entitled to clear deference here so i guess to recap as i i think that statement came first the statement by defendant  i think that this court said that and even if there was some sort of law enforcement interaction pursuant or following that conversation i don't think that that was sufficient to require or to be a miranda violation just to clarify i think these statements should be analyzed at least the first one should be analyzed independent because it occurred prior to the second one before any of those factors happened so i think we first have to analyze the girlfriend of the sally port statement and then analyze the second statement which occurred i believe without any prior violation of ran or carry finally also i think the any error in allowing these statements and denying a motion to suppress was harmless based on the evidence that's been put forth in our brief and the record before the court piece the court i think it's important to look at these incidents that a could individually because we're attorneys and judges and that's what we do and we think about  analyzing cases in every which way possible but what's most important i would suggest is that you have to look at what happened in this case you have to look at the fact that  at the police conduct beginning in the holding cell and continuing through the series of events because i don't think that it's certainly possible that the defendant would not have made those statements had the police not spoken to him off the he said stop right there and with that the appellant will respond respectfully rest upon his brief unless the bench has any questions before you head out mr katz if i know that you are court appointed and we certainly do appreciate the work you've done not only for your client but on behalf of the court it's a public service and we certainly do appreciate it thank you very much