good morning please be seated welcome to the ninth circuit we're delighted to be with in today on our last day of of arguments for the session we have a pretty full calendar so we're just going to jump right into it well he the simplest issue i think facing us today the court simply applied the wrong guideline you know is this you talking about the the denial the mine or all i guess is in that given that your client's been let's not say that we agreed with you that he should have gotten i guess what is it two levels down and that would have resulted in a lower guideline range yes so what benefit would that give him his or some concrete gain that he would get from that still in custody so the issue had not come up at that time i have not cited that the brain ok but what difference has arisen but the point there is that where the court a sentencing issue is not moot even though this full sentence has been has been served even if it should have been lesser if there are other conditions of the sentence that the court can modify upon recent and say well i think in this case there are in ireland it was the issue of supervised release that could have been a reduced here can't be here it can't say it's a three year that's so he change so what would be different even if we agree with you on this point and the other thing we could be different is our terms of the supervised release could be modify would that be affected by whether he kind of minor all the chess there are it would be in the same sense allen part relied on to sixty eight of third eleven forty nine if they were it's possible for the court to modify to modify the conditions of supervisory release it is possible for some relief to be to be you did you advise counsel it that you were going to argue something that's not in your brief and provide him with the citations in advance of this argument nor did not and you didn't want to hold a secret until he's now or know you're an ordinarily we'd get a better argument if you  would advise him in advance of the cases so he could read them it's a disservice to us if you do it otherwise i'm sorry the court feels that way or another i just not a question of feeling that way i'd like to make a judgment with everything before me just ok could the issue the motion to to suppress first the miranda issue there's no question the warnings were not given there's no question that there was an interrogation so the issue on which there's a dispute is whether the suspect was in  custody and the question there is a judge on the totality of the circumstances whether a reasonable person would feel free to to leave there's two ways of looking at that either one of which would lead to the conclusion that he was not one would be to go through  the what so called came factors though they long predate the kim case but the factors five factors that this court ordinarily looks at in that situation and another would be to look at the jacobs case that we've relied on from the third circuit which is very closely similar on the fact in fact it's more similar on the on the miranda issue than it actually is on the voluntariness out it's a little different that that individual had been in the third circuit case he had been a confidential informant for how long say in fact that it's morse more similar on the miranda issue than on the voluntariness issue with respect to the to the miranda issue you look at the the can factors each of them to the extent it applies at all cuts either to a greater  lesser extent in favor of a determination of custody the one that goes strongest in that direction is the second one the extent of to which the suspect is confronted with evidence of guilt in this case to hold meetings one long confrontation with evidence of guilt  another one leaning strongly in that direction is the fifth factor the degree of pressure applied to detain we have the pressure here to detain until he until he makes the admission i think this is where  this is a case where he walks into his own volition he walks out of his own volition that's there's no indication i see here that he couldn't walk out any time he wanted to show me where i worry your evidence is that well that's where that's where i think the most closely on point as a points out in jacobs you don't come in you don't come in freely when you you're under the instruction that you must abide by the instructions of the f b i he was under that instruction your client was told as a condition i guess of being the same instruction that was given to jacobs and i can see your point if these people are have something over him and the f b i is using him and they're good may get a break and not have to go to jail they're going to say if they say come in and see a subpoena come and see us but well what was the was there any substantial difference between the relationship in the third circuit say case between the confidential informant and the police and the confidential informant and this one other than it was just very short it was short i think the jacobs and by just by virtue of being so much longer there was more of a maybe more personal or more trust relationship that built up in jacob's than that that had not had time to build up in this case that is a down and the but as jacobs also pointed out you're not free to leave you don't lead freely when you're not free to leave until you answer the question and the fact that after you answer the question and give the investigator what he wants you then can we does not mean that you reasonably feel free to leave while you're being questioned before you give an answer and also you're looking in the background which making this case a stronger case for custody than jacobs is the admonition from from the first meeting you could be arrested we could have you arrested i underestimate asked no but we could have you arrested so that's always looming out there is a threat we could have you arrested if you don't cooperate we could have you arrested if you don't participate as as confidential human that probably wasn't news to him because he knew what he was doing so he had to know that he could have been arrested dumb to think that i mean he was specifically advised that by the by the instructions what he never had was any practical experience or that he had no use of it he never arrested anybody in twelve years he never interrogated anybody in twelve years that was not the kind of police work he did he issued parking tickets at the airport he maritime search and rescue rescue as a ports police officer who just was not involved in the side of it in terms of interrogation and arrest the most he was ever trained in was to the effect of put on the cuffs and wait for the real police to show up they handle that and he never did ok so you're almost out of time why don't we stop here for the government will give you time on  i don't know i guess i want to thought maybe you would have advised us that you thought sensitive issue lease was moot and that we didn't have to waste our time with and here are the cases that support that but you're not prepared to address that at all right now i can for i can just i follow up what your question was i which you are saying what term a supervisor this could possibly be changed and i don't think there is anyone you know so are you i'll tell you what your position and you sort of suggest you don't have one because you haven't thought of this do you have a position since i have not thought of it i will return to the merits and just say that i think it can be resolved as briefed because i don't think it is a very close case i mean he literally distributed them that i mean in exchange for money he is not substantially less culpable than the other drug dealers aren't you participants here so not that close voluntariness perhaps a little more but this court the cooperation given by this defendant was about two and a half months but more importantly a total of about four hours of contact with this f b i agent and another port port of this cooperation that leads into both custody and voluntary answers all of his cooperation was incriminating everything he provided tied back to him and he specifically said i don't want to do your help but these people because i haven't called them in a long time and that would be weird so any time he comes in or helps it's going to implicate him in some crime so the which is in stark contrast to jake ups where she's being confronted with a new crime that she doesn't know anything about and i think that's a significant difference jacob is dissimilar for a number of reasons but that's a very important one when he was summoned that day he had to have known he was going to provide incriminating information that incriminates himself who was somethin because into five total meetings first one is initial contact there's a second one that's not very helpful there's the third meeting where he has signed up officially as an informant that's where they go through the paperwork to get in the admonishments the exhibit your honour's three eighty eight but i was looking at it and there is an admonishment that says you you the person trying to cooperate must abide by the instructions of the f b i and he was instructed to come down there and answer questions that sort of implies that until  we're done question you you're not free to leave at least not according to our instructions right if memory serves me the first in management is everything is voluntary right there you're right that's number one but number three says the c h s whatever that stands for cooperation something or other human source ok must abide by the instructions of the f b i that seems pretty clear if you volunteer to agree to cooperate yes then you must abide tell the truth right but the person i mean maybe as you said it goes more toward voluntary yes but the person feels as though they've been told at the outset as you're on has mentioned that we've got the goods on you we can take you into custody right now and so you're out there mercy and they so you you come down here and answer a question i mean you think a reasonable person might feel just saying you know what i'm out here and they're going to be allowed to leave after they've been told well arrest you unless you cooperate according to these instructions i don't think language will rest unless you cooperate we could arrest you and probably lead an indictment and go through that process but i don't think that that can be taken as you must come and answer your question and you can't leave you're simply detained into the you do so i don't think that that's a fair reading of what i just that yeah  truthful that's why i think voluntary ness is more important but i guess what i'm saying is that if the if the relationship the structure at the outset such that the person is advised we can arrest you basically unless you're willing to cooperate and the person says god ok i don't want to be arrested so i'll cooperate and then you are told ok if you want to maintain your status as a cooperator you must do x y and z one of which is come down here and answer all of our questions whenever we summon you then doesn't isn't the implication that well if i come down there and start asking questions i don't want to answer and i say no i'm done i'm not here that then your status as a corporate has been terminated and now you're back into the well we can  evidence on behalf of the appellant that it's different good evidence for him but i think that you used the word implication here we have evidence that he remembered i mean i asked him this person and you remember being in march that this is all voluntary yes there was i don't believe there's any testimony elicited that he thought he might have to abide by all the terms of conditions i might be wrong with that but i do specifically ask did you remember this is all voluntary he said so i think that was in his mind when he arrived he knew that he should we shouldn't speculate we should we should go after this defendant who nothing that this person could say that's going to in any way for the purposes of this agreement they've struck doesn't bother to tell him that and then what was the i don't understand why is that not offensive to you well i mean i mean i'm a big believer permitted and it wishes of guilt or inherently you know desired i mean there's many pronouncements in a supreme court case law about the benefit to society for admissions of guilt as long as they're not coerced and this we would submit this was not coerced if you want to say it was trickery that's fine but if you don't think it was trickery you're not even going to concede that i can see that that he was he did not i just it's you know i think it's offensive that the agent did this i don't i mean maybe you're right that the statements only don't have to be suppressed but i guess i share the the district courts sort of just pleasure in seeing that this is how you all operate if you want to get someone to cooperate that's fine that's there's all kinds of benefits that come from that but if you then decided no longer have any use for someone you know don't don't use this device to calm down and try to extract some incriminating statements from them that just seems wrong maybe in some you know esoteric way but not in the law when it is expressed permitted under law in this in this court is using language although reprehensible it's permissible just look if you want to question the guy and say come on down just to let you know at the outset we're no longer using you as a cooperate or but we've got some questions for you and maybe you can help yourself you're the hear the tapes that per per haps would be more fair but it's again it's not required and well gee what you know what in your view is the question before us probably have of every tropper just paid in last a week it's a knockdown drag out fight and we probably have about a fifty percent acquittal rate on top of that so if we're going to go to trial we want to have the best evidence possible and we wanted to be  direct as possible the twenty fifth the media on the twenty fourth they got into some incriminating statements but the way that it transpired with the phone ringing he left early they didn't get into what they wanted to get into originally and this was a way to make his admission  being required to apply the guideline on on a minor participant when in fact that has been taken out of the guideline that snow has taken up an amendment in two thousand and eleven it's not there anymore that's no longer the standard so the court was simply applying a more heightened standard found not trickery it is not does not vitiate of voluntariness and he cited some some cases to that effect i think what we have here is not just trickery standing alone however i think what we have is we have we have a threat coupled with a promise coupled with as as you're as a c h s as the confidential human source that's what's that's what's got him into this program that's the motivation that's put him in there and there's also an implicit promise and got in the thing that was that there was a desire to have some additional information as statement which which which ended up being admitted and so that's that the there's there's there's an implied now promise that's inherent in that status that they gave him as a confidential human source that by telling the truth about cooperating that by going in and meeting them by giving them what they asked for that you're benefiting your own prospects in fact he was doing the opposite and so and that was done by the trickery because they didn't tell him he had already been closed out as an inform so you don't just have trickery you don't just have a promise you don't just have a threat you have all three in combination with one another and the result of that is his will being overboard we've seen what his will was his will was nothing wrong with we feel there's nothing wrong with trickery if you're dealing with suspected people who've committed felonies or other crimes the only real issue we have here is was he in custody when this happened the district court i thought made a pretty good  opinion that why he was not in custody aside from what happened before in the rest of that what is there specifically about this interrogation in this conference room it indicates you he was in custody when the officer specifically told him he was not in custody and he came when he wanted to and when he wanted to leave then let him leave well they may have told him that at some point they didn't tell him that on the day it were interested in which is the fourth of april those are the statements that we're seeking to suppress also i would other things i would point out is that he went there to to listen to some recordings he had no indication that these recordings of his own crimes he found out it would by surprise when he got there the officers express their belief in his guilt they believed that he was guilty they expressed it to him those were important factors leading towards custody in jacobs they also go into the source on the tape was he is understand what you're saying they didn't say to him we have recorded you but he h don't know what i don't know what it is you know i know the one voice i don't know the other and that was that was that was where where where where he was going where he was that's when you're trying to protect he said myself right his his his will was to protect himself but it was over borne by the combination of the threat the promise and the improper inducement of the trickery that was being exercised by the by the detective at that time ok thank you counsel the case just argued will stand submit