was the third time i've heard this kind of opinion i disagree with your objection is duly noted so i raised that both in the district court and on the essentially confessed to elements of the offense that that information had not been disclosed prior to the time of the rather surprising testimony from the witness during the course trial very briefly on the first issue mr george of africa was arrested on a federal warrant on february third two thousand and eight he was  really is whether that period of the law till till everything was concluded was a reasonable if it clearly exceeded the six hours so the question is whether it's reasonable and  hard it seemed to me at least initially looking at it that between the travel time and the fact that it was held by the state and people had to get there and so on and so forth that it did seem reasonable under our by state officers and lodged in the state jail that's correct and there were there weren't any federal people there to question him at that time they had to travel to practice they traveled from st louis to st charles where the jail was located that is a distance of twenty three miles that's not in reasonable condition distance he was held in a county held in county jails there is a difference so we have contracts with the jails that you have mentioned do we not for holding federal prisoners there's no evidence in this record as to whether or not the u s marshal service has a contract with the st charles county jail for holding prisoners the question is whether or not he was in federal custody as of the date of his arrest or state custody and i think we have a finding do we not by the district court after an evidentiary hearing that he was being held on a state hold until the next day when he was released to the federal agents but it wasn't the next day it was two days later before he finally well he was arrested on a sunday night and they interviewed him on monday afternoon and the agents asked can we take them and the jailer said no there's a hold on him he's not ready to be released yet so they came back the next morning and picked him up is that what has the sequence of events that is sequence of events why wouldn't that be reasonable we have cases or at least one case that says that if people are not available to question that's a good reason for delay  to determine whether somebody should be charged or not charged that's a reasonable to life so why isn't this sort of the problem of getting the paperwork where a reasonable t had he been taken to court on the date that he was questioned because it was a sunday evening approximately five o'clock i believe that he was arrested he was interviewed  at one thirty the following monday right five and so so in your view would he what is what i guess what piece of that time is unreasonable are you saying that he should have been question sunday night by eleven pm question one thirty monday that's not unreasonable but an additional twenty four hours to do the paperwork this is someone who was arrested on a warrant had never appeared before anybody ok so it's the delay after the questioning that you're looking at as being unreasonable that is that your  your view or at least that district court could properly have concluded that they live for our after he was interviewed isn't reasonable given the proximity if we had been talking about being held in some county four hundred miles away from the magistrate certainly that would be a different question but what is what is a federal agent to do when he says to the jailer i'd like to take this man into custody in the jail or says he is not ready to be released to your custody i don't have the necessary paperwork to release some does the marshal say we'll stand aside or i'm going to arrest you for obstructing a federal officer i don't think so i think that there needs to be a well now this man was being held by the state into being held by the federal even being held by the state on the federal warrant there was no separate so called state that appears to be the situation isn't that what deputy lamb testif i thought he used the word hole did i misread the record well there was no separate state charge is that what you're saying that he was not being held on a state crime but that's correct ok he was in the physical custody only state of florida and i have really nothing to add further on that issue i do believe the more important issue is the discover two thousand and fourteen there was in the discovery process submitted to counsel back in two thousand and eight and then resubmitted following remand on the on bank after the on bank decision a report from the u s marshal adler indicating that during the course of his interview mr george  that he had attempted to obtain a cd into other places racine wisconsin the st louis area he discovered that there were difficulties legal difficulties with those so he terminated his inquiry to those what was testified to was that mr george vecsey add that he knew not only that the very scene in st louis were illegal operations but they also knew prior to coming to spokane that it was illegal for him to do so now against that was very much evidence that mr george ringleader of all this testified that he didn't give mr george of ache any information he did not for example at the time that mr george evac had completed the written test and was given a passing grade on it and given the certificate to go to the park with the paperwork had an address a spokane address it's testified that the term residence has little meaning in the serbian and croatian bosnian language i mean you didn't try to prove that he lived at that spokane address did you know i mean that that address and then not his address he was living it is and whether this is part of the difficulty with the failure to provide assuming that mr george addicted in fact make the statement i knew what i was doing was illegal but assuming that he made that statement this is part of the difficulty it was apparent as early as two thousand and eight that the only defense available was one of a lack of knowledge and intent or is it your argument that the report failed to comply with the federal rules of criminal procedure is that your argument that's the argument what if a cli is wrong with the report laid alongside the rule the report indicates just for example that mr george vecsey said that he had attempted to web to a new license in racine and st louis but he found out there were legal problems no discussion about what the legal problems were no discussion about a civil problems for of a criminal problems but he discovered there were problems so he withdrew from that and it problems with those two situations so withdraws and the testimony is that he specifically stated he knew that he was violating the law when he did this when he came to spokane to get his driver's license mr smith isn't this the issue that our panel addressed in united states versus hofmann it's a sense of the difference between a written summary of an oral statement and we dropped a footnote number four in that opinion in which we've basically rejected the argument you were making because the mere fact of summarizing an oral statement could surely not transform it into a written recorded statement which is really what you're asking for to hold otherwise would render meaningless the distinction between oral and written statements under the rule your honor that is not what the argument is that is not whether this was a reasonable summary is whether it's accurate what are we don't even need a written summary but the law does the rule doesn't require that every oral statement by a defendant be transcribed verbatim the rule requires that written materials that ascribe statements to a defendant or statements that the defendant has made which the government offers it intends to offer in its case in chief that are memorialized perhaps in another witness statement be disclosed under rule sixteen so the defendant has some idea of what's going to be introduced against him and from whom it's going to come the law does not require the agents to record their interviews so that you can hear exactly what he said that's what you hear at trial when the agent testified that's what we hear at trial that there is a huge step between any kind of summary  general information and a specific allegation specific testimony that defendant in essence confessed to the current what you're really arguing is that the is that the agents written report of his interview of your client was misleading because it didn't express fully state what he said in the interview and the first time you heard about it was when the deputy was on the stand at the trial and basically said your client admitted that he knew it was illegal to be buying commercial driver's license that he didn't qualify for that in essence is the argument and i name please the court my name is joseph harrington and together with co counsel timothy durkin were assisting united states attorneys for the eastern district of washington in spokane we were co counsel during the trial this matter and we've been would like to take no more than seven minutes luck i think the courts well aware of what the the overview of the facts of this case are involved the defender was charged with mail fraud a scheme to defraud the washington state department of licensing by depriving the department licensing of the intangible rights of on its services it involved a bribery scheme involving a department of licensing driving skills tester who approved applicants without conducting an appropriate driving skills test it also involved the bribery of a part of licensing approved bosnian translator who helped applicants cheat on the written commercial driver's license recount so i think we are all pretty familiar with the facts let me get directly to the question that i'd like to hear and put on which is why was the delay between the initial  arrest sunday evening and the eventual presentment tuesday morning it was tuesday morning why was that delay reasonable and in particular opposing counsel seems to be focusing not so much on getting the federal agents there to talk to him but on the period after that not take not taking him into magistrate before they understand judge graver  district court judge say he he consider this issue improper i would submit properly rejected and denied the defense motion what's our standard of review the standard of review  based on an indictment that was issued the end of january of two thousand and eight on sunday february this is a sunday february third about five o'clock in the afternoon the defendant who was at the time  that this individual has been arrested those two officers were familiar with the bosnian language because they had been investigating and currently we're investigating two similar commercial driver's license schemes that were occurring in st  louis so they respond that morning because this was a similar scheme and he had been arrested far opposing counsel isn't concerned about the law so and i may add real quick your honor remember now we're talking about the st louis metropolitan area and and they began a interview of the defendant and that started about one forty that afternoon the interview according the record took about an hour and a half and then according to the record these federal two prongs i think your honor so the so remember now is the defense not in federal custody until the following morning which would be that's actually part of the problem that's exactly the problem that the defendant is complaining about well you honor that the governor would take two positions as we argued or bre first it's the government's position that there wasn't a delay here because it's the government's position that on tuesday the following morning the two agents went back to the charles county jail  took they processed the defendant let me talk to the chase here and i understand your position to be that the time he's in state custody doesn't count but that doesn't seem to me to square with either the language of the statute which talks about detention in the custody of any law enforcement officer or law enforcement agency or with our halbert case which says that other circuits have said state custody doesn't count but we say it does so what's your other argue i understand your  so the next the next phase of the argument then if then the court has to look to determine whether the delay was reasonable or not and there are several factors that go into that including among among other processing of a defendant  whether he had defendant he or she is in fact in state custody the timeframe here we're talking about a sunday monday timeframe well now we're going we're talking about monday tuesday because counsel is concentrating on the fact that the state was  view in processing the paperwork so as to allow the federal agents to take him immediately on monday afternoon when they were finished talking to them and i think the reasonable this again your honor is coordinating with the with the state officers to allow them time to process i think judge thomas has a right that the u s marshals would have been in the special agent from the f b i would have been a position to to hold him in contempt or obstructing and arrest them so when you look at really the broad policy of the reason for the rule was there any suggestion of collusion with the federal agents in the state employees absolutely not the record would belie that because the federal agents wanted to take custody of the defendant and they were they what time on tuesday did they help to my judge they arrived at the jail about nine thirty in the morning it took a proxy courting the record approximately half an hour to process the defendant out so they left the jail at about ten o'clock in the morning they drove to the same louis missouri eastern district of missouri federal courthouse and the defend it was arraigned  around two o'clock that afternoon so it was approximately four hours between the time the defendant was brought into federal custody and presented to a federal magistrate in the eastern district of missouri so to argue that  somehow there was a broad clues of activity between the federal officers and the state officers and that the federal officer should be somehow responsible for that i think doesn't comport with this court's recognition about reasonable is that a factual finding or a mixed finding of law in fact going to what difference do i apply to your honor i think that's that's a mix question of law in fact i would submit and i think what's the driving factor is the facts and i think you are court under the standard has to defer to the district court with respect to historical facts what time it was and what people's intent was when they did it that's factual conclusion of reasonable for us to draw your position that would be my that would be my suggestion yes was this a mistake on the part of the jailers that they thought they had a holder was the underlying conduct i presume could have been a state crime also your honor i don't know but a record doesn't tell us it doesn't tell us specifically what we do know is that he was the defender was arrested on the federal warrant and that explain his the court's statement at line fourteen there was no evidence that the delay was motivated by any desire to interrogate mr doors of it before arraignment rather the delay was due to practical difficulties problems relative to the three o two and focuses solely on the three o two of course and may no reference in this argument relative to the other transcript that was provided to him his client and that was at the time of the testimony provided by  marshal adler during the august twenty first two thousand and eight motion to dismiss suppress a motion to dismiss that took us on a lengthy your journey to get where we are now and that testimony  supplemented certainly specific statements and we outlined those in rather detailed fashion or at least we think so in our brief on pages thirty five to forty so is your position that discovery consisted of both the the course of this one and a half hour interview that occurred at the st charles missouri jail county jail those two items in combination and certainly within the context of this case and who those investigators were at the time that they interviewed the defendant had to put the defendant on notice that when they were talking about legal issues and they were talking about schemes in wisconsin illinois two ongoing prosecutions in missouri and also this scheme in spokane for which the defendant had been arrested advised of his rights and agreed to voluntarily cooperate with the interview certainly the term there were legal issues had to connote that they were criminal legal issues because they were being interviewed by criminal investigators and those in criminal investigators have been involved in the case of us vs reds which is out of the eight circuit that was charged that did not claim of the lack of notice relative to the explicit statements that he took issues with at the time of the trial judge who sat in dobbs oeuvre all of the witnesses in the exhibits and evidence that was admitted at the time of the trial  concluded that really and united states smith's that the defendant took the position as he as counsel mit it in his opening argument that the only defense in this case for them was to try to explore innocence fence and therefore they looked at this thrill to respectfully submit with blinders and decided to focus on a self created ambiguity relative to there were legal problems and instead of realizing that those legal problems arose in the criminal context of the investigation decided to extrapolate and say well they could've been civil legal problems that could have been a ministry to review legal problems and you didn't say look specifically what those legal problems says i was a criminal investigator i was involved in two criminal investigations relative to identical schemes being perpetuated in the missouri district i was aware of other schemes in wisconsin  illinois and the defendant acknowledged in talk to the officers during the course then desiccation acknowledged he was aware acknowledge that he had attempted to buy for twenty five hundred dollars cash cd else in each of those schemes wisconsin or st louis the issue is at the time that he was interviewed what did he say about what he knew and what he intended to do in spokane washington when he came out here certainly we can pick the time from the date he was interviewed today's date and there's a no now that using the address that he used does not comply with the presidency requirements or see whether a response to the government's argument that you've got a fair amount of additional discovery in the testimony that was offered at the pretrial hearing on the motion to suppress i completely disagree if you use that transcript there is nothing in there to indicate that he said anything more than what was in the report about knowing about these situations where he possibly could obtain  wisconsin in st louis there was nothing in that testimony i thought there was testimony by the deputy that he told your client at the jail that he had been investigating similar scheme in missouri and your client told him that he had abandoned efforts to try and get a driver's license in other states because of legal problems wasn't that discuss at the time that he was interviewed this was after the time of course considerably after the time mr george was in spokane to get the license yes the the deputy said we've been investigating these and mr george vick said well you know i looked into  i looked into the st louis but i left him because of legal problems and just very quickly i would say and in the briefing i pointed out all of the things that indicate that mr george vick did not know on with out the surprise testimony could not have reasonably found him guilty thank you counsel the case just argued and submitted and we thank all three counsel for their helpful arguments