please the court i'm kirby heller i represent the government i'd like to reserve three minutes for a battle ok the question in this case is whether agent conway's questioning of mr chen constituted interrogation this court has consistently stated that questioning even act in a custodial stedding is not is not necessarily interrogation instead the question is whether the questions are reasonably likely to elicit incriminating answers that determination is made by looking at all the circumstances of the particular case now the district court made two fundamental errors first by finding that aging conway had a dual purpose in mind when he interviewed mr chen he ignored the testimony the consistent testimony of the agent that the only purpose of the interview was to get information about  we suspected of alien smuggling that was the sole purpose of the interview there wasn't any testimony that he was trying to get information having to do with the chair and his illegal status but of course the district judge is not required to take the testimony is true well that's correct although there are certainly no statements in the record that he that cast any question on the credibility of the agent but in addition there was a well i'm not sure that that's right  for example i'm reading from excerpts the record page forty one this is testimony with mr conway during cross examination activity at the time you were interviewing is that correct yes that's correct question well sir are you aware of the crime of bringing in or harming anyone yes question are you aware of using a false passport yes question are you aware of the u s c thirteen twenty one improper  alien yes question yes it is your testimony that you did not think he was involved in criminal activity when you interviewed yes that's correct well what do you think was your tourist this proposed really did not think that he violated the not telling the total truth russia while much of that's right well that really the fundamental question is just what you're getting at your honor and that is whether this theoretical possibility this mere possibility that could be prosecuted for the misdemeanor offense of illegal entry is that they sent to convert questioning into interrogation because all questioning of course of an alien is going to raise the possibility of that prosecution for that misdemeanor and so that is really the fundamental this case not the case described in that if clause i believe that what this all got out of court was referring to there when you talked about charges were criminal charges but it didn't say criminal just said charges they just say charges but that very next paragraph it does talk about questioning really was not at all geared to mr chen and perhaps most significantly is that nothing was done after this interview and he only became suspicious of mr chen and the other allianz more than a month later when other suspicious circumstances came to light it was at that time that a criminal investigation began so there was nothing either before the interview or during the interview that one could say  addition of course all the papers that were that were filled out all the reports in connection with mr chen's detention were administrative and indicated this was just a ministry of action and in fact the fact that he was offered the opportunity to voluntarily be removed as opposed to go to a hearing in front of an immigration judge further confirms that point they were not anticipating at all that there was going to be a criminal prosecution and they were going to be happy if you just removed and was removed voluntarily so ultimately the fact that he was an illegal alien although again that subjects him to possible prosecution wasn't in the mind of this agent and i think since it's only a theoretical possibility it's difficult to say then that it was that the question reasonably likely to elicit incriminating fast but only change when other when other things happen in this case they didn't change pretty easily no not really they were always after they had smuggler and a criminal charges would have brought against mr chance in a temp to put pressure on him so i testif is this is not unforeseeable consequential we do get pressure by the prosecutors quite legitimately in many cases on the little fish so they're all wrong on the big fish but i think in these circumstances your honor we don't have that happening until later on again if that were the case then criminal charges or criminal investigation would have begun right away but it didn't it only began at the end of february when other suspicious things happened that there were a bunch of these aliens were all represented by the same lawyer and unrelated people from guam were posting bond that was what triggered the agents minds the decision to begin a criminal investigation and i think what was with this interview was was more akin to what the miranda court never quite so called on the scene questioning their intent was to do some kind of investigation against the smuggler the witnesses to that of course are these the legal aliens and they're trying to get time ok thank you good morning honest from me please the court my name is john gorman of the federal public defender from the district court was correct in suppressing mr chen statements because this was a criminal investigation and they were investigating both him charlie in this case he was in custody and he was never given his miranda rights it is undisputed although you would the government somewhat tries to get around the issue but it is understood muted mr chen was in custody it's also undisputed he was never given his miranda warnings as the government says the only question here today is whether conway's questioning of my client on january tenth or january twelfth two thousand and one were reasonably they backtrack a little bit alien smuggling is an international ongoing criminal conspiracy spanning china into the united states there's a whole range of people involved from the snakeheads in the province to the people in the boats to the people and while they're all part of this ongoing criminal enterprise so and as in most federal criminal prosecutions you want to start small you start with the little guy you roll your way up w beneficiary of this smuggling conspiracy so of course he is a natural target if they when they go there and they arrest these folks they don't find the person they're looking for mr big who suddenly they do find my client who they know  involved with mr lee so what are they going to do they're going to put pressure on my client mr levy you read the last sentence from the u s attorney from the grand jury testimony  where she says just before she submitted to the granger this is back on may ninth two thousand and one it's this is on page forty nine of my supplemental excerpts records it's obvious what i'm doing of course  thanks a technical violation to be an illegal alien here it's very unusual for the smuggle levy will call him to be prosecuted soley because he's an illegal alien present in this country without the permission of  said during his testimony the motions present he says these things are not usually prosecuted he didn't say it's a matter of policy he didn't say as the attorney for the government said it's highly unlikely and then and as i noted in my brief there had hundred eight and two thousand and four forty eight prosecutions of this tight in guam on september first just before i filed this brief there were four people who were brought so it is not a highly in guam at least that is not a highly theoretical prosecution and they're not only is he possibly being prosecuted for illegal entry was prosecuted for perjury and then we also have he could be a codefendant in this case at that time they didn't know who really they had in front of them and whether or not he was an active participant he might have been a coconspirator in this many times in the smuggling rings they use one person who's and if you say if they didn't know then how can you say it was rea bly likely to elicit incriminating responses they didn't know he was involved in an alien smuggling operation they know that from their confidential informant who they'd used to get the search warrant who said that he was present when the five men named chand were picked up on september twenty fourth of two thousand so they knew that there was an ongoing criminal conspiracy a large scale and my client was a part of it whether he was just a beneficiary of  for the prosecution but there's a key there key factual differences both delgado and solano involved the investigation and interrogation of questioning of individuals by law enforcement people and then they were prosecuted years later after future crimes were committed in salon a gold these it was two years i believe salgado won and as the court this court notes in so god in each the response only became incriminating after a substantial period of time and after defendant had been deported had illegally re entered the country and had been arrested on state charges unrelated to his immigration status the theory being how could they possibly know when they interviewed those two defendants that they would commit crimes in the future this is major factual difference because they were investigating here with my client in the head and that's the that it happened in the past so of course they can't foresee that the gentleman would leave the country enter commit another crime so there's a major factual difference i would ask the court also to consider and this is language from cell got on page eleven seventy four of course for us we like math and we think that controls but the language from salgado unlike mot the person asking questions did not know and there were three things this person did not know one from pending state charges a federal prosecution could result well this is totally different these are both federal immigration and federal district court second they did not refer alien for a criminal investigation or initiate one themselves this is a major difference he not only mr conway referred my client for criminal investigation and initiated it he did everything in this case the second and the third difference was the defendants were not prosecuted forthwith federal immigration charges here's where the government may attempt to hang their hat on the fourth with question because the motto there was only a space of three hours but here when you look at the time line certainly this was not three hours this was four months he was arrested on january first january eleventh he was interrogated questioned by mr conway and twelve a report was prepared to weeks later so that would put it at january twenty sixth this is a criminal investigation report the report was signed by mr conway and sent to the prosecutor on february fifth he was eventually indicted on may tenth after the grand jury in may ninth this is a continuing investigation it is not exactly forthwith it was not done within hours but we have a continuing process here that starts with they when they got the search warrant on the tenth of january all the way through four months later when they actually get the indictment of my client so there's not forthwith but there is no break it is a continuing investigation of my client also there's another factual difference that i would ask the court to to look at significantly that is there's a theme throughout the government's argument that they only became interested criminally in my client until after he was bonded  out and people who didn't know him bonded out and that's what they say ah that's when the light goes on that's when we're going to start a criminalist occasion that is absolutely untrue it isn't supported by the record it isn't supported by the agent's own testimony we have the agent's testimony and this is from page fifty of the government's excerpts the record connally's testimony at the motion to suppress the date that i signed it we were already looking into whether or not they lied on their application and we know from previous testimony the date that complaint and he sent it to the a us a was february fifth he was not bonded out till the twenty second so this theory that this whole investigation spraying spring up on was two weeks later so that's january twenty sixth then he talks about he signed the report he reviewed it and he sent it really was sanford worth it so the idea that this whole investigation stemmed from the bonding out process on it you know he'd have to be a net went not to be suspicious from the get go that is to say they have a temper they raise this resonance they find all these illegal  there together and i think it's entirely within the sort of boundaries of the facts and the inferences that can be drawn from the facts for the district judge to concluded that very early on long before the bonding out by these by him now they didn't have much evidence but that's what they thought well they thought that some of these individuals were smuggled by and then your honor i don't believe there's there's anything in the record well let me let me back in the grand jury in conway said the informant told us that th ese people mr chen and the others were smuggled in by lee but we don't know he doesn't say in that testimony when he learned that when you look at the affidavit in support of the search warrant certainly no names were mentioned and the information they had from the informant at the time was that mr lee had smuggled in five maybe six people when they go to the apartment there are twelve so there are a lot of people that they can't account for but there is there are certain facts upon that administrative removal that suggest they certainly weren't suspicious at that time or that sharon was necessarily one of the people that lee had smuggled in the dates they put in for his entry along with june date which is the date that he had given they credit it is a count of how we got it and it came in a fishing boat and when they got to watch the way those were the events they put down and again the fact that they were willing to let him go back to china to be removed voluntarily shows that they weren't going to prosecute him for that they didn't suspect him of being part of smuggling now he could have been a smuggling but in their minds that was not something that they prosecuted image that's a federal that's a federal crime it was at the time that he asked that question but that wasn't enough to cross the line into interrogation despite the fact of course the dissent made that point that didn't persuade the majority and that's what we have here