the next case on for argument is united states versus suppress under a straightforward application of this court's decision and mcelroy genius's entitle to a new trial the notice was misleading because the government's use of the phrase initial inspection referred as a matter of ordinary usage to the first inspection that is the inspection captured on video that occurred in the terminals public area the district court agreed finding that the government's disclosure was vague imperfect  imprecise and unfortunate and that the government's notice would not have triggered a motion to suppress because the law is clear that miranda warnings are not required in the noncustodial setting of a public search in an international airport terminal  that understanding was also consistent with the testimony of the government's witnesses officer santos testified that the phrase initial inspection would not refer to the back room where the bottle was broken open and officer testified that vignettes was not taken to the back room until officer santos was quote done with his examination of the luggage if we agree with you that this was misleading or at least ambiguous is it fair substantial prejudice as to the likely merits of any motion to suppress the roy says only reversed and remanded for a new trial saying only that a motion would have not would not have been frivolous we've made a much stronger showing than that we've shown that a number of factors this court has consistently said militate in favor of a finding of custody were present here venus was marched by four uniformed armed customs officers to a private search room they took his passport he was not free to leave and officer santos testified that the purpose of moving him to a private search room was to prevent him from leaving the record is simply silent with respect to a number of other factors that this material for example the duration of the questioning whether venus was restrained whether the officers displayed their weapons what the other questions that preceded the store question were and so on this record we feel that we've more than satisfied the burden that mcelroy lays out this case and mcelroy are are both cases which are a little unusual because the claim  is because of government misconduct we were prevented from developing a record we were prevented from having our suppression hearing so we don't have to meet certain other standards  k are there any other cases other than mcelroy that have used the standard it could not be said that the motion would have been frivolous i understand why it's a useful test in this context but are there any other cases that have used that standard so the parties haven't identified any other cases involving an error of this nature that is to say a misleading rule sixteen disclosure that causes the defense to forego a suppression motion that said there's a good reason that mcelroy articulated that standard and that's because when a motion is forgone through no fault of the defense the record will often be silent as it is here on material factors and that's why advan asking whether the motion would necessarily have succeeded puts the cart before the horse in f n u l n u this court said where the district court makes no find of custody we ordinarily remained and that's why the standard has to be more forgiving in this context if we conclude that your motion to suppress would have been with a failed even with the best a fit of additional discovery what evidence can you point to that the phrasing of the disclosure substantially prejudiced venus's rights in the context in the cowboy they haul premise of the cross examination rested on the  suppressed statement here there was substantial evidence in the form of all the text conversations that reflected a certain provided basis for inferring knowledge how can you show a substantial prejudice so you're honest question goes to harmlessness let me say at the outset that the government has not argued harmlessness with respect to the store statement they have argued harmlessness with respect to the prosecutorial misconduct claim but not with respect to the store statement and for good reason the government referred to the store statement eleven times in its jury arguments twice that said that the statement was done this counting but in the counting you don't really discuss the other evidence that was before the jury regarding knowledge and you know it's true that the government referred to the store statement as devastating and and repeated its references a couple of times or several times eleven times but you do have to show substantial prejudice don't you that's right and let me say two more things about the government's jury arguments as the court noted eleven references twice the statement was referred to as devastating and once the government argued that venus's changing stories alone were compelling proof of knowledge which was the only disputed evidence the only disputed point in the case but on the question of harm i think it's instructive to look at  untainted evidence of guilt and map all right was compelling far more compelling than the evidence present in this case one witness a cooperator testified that mcelroy handed her a bag containing heroin a second witness the undercover officer testified that not only was present at the heroin sale and was ready to receive the by money that is there was first hand evidence that mcelroy had distributed and conspired to distribute heroin nonetheless mcelroy found substantial prejudice in this case where the government's evidentiary showing of knowledge was weaker than the evidentiary showing and mcelroy we think the finding of substantial prejudice is dictated by the result there and again the court can take a step back and look at other concealed contraband cases where the evidence has been found insufficient as a matter of law and consider some of the factors also present here concealed contraband wellhead a defendant with no prior criminal record  inculpatory statements no documents relating to the conspiracy or mentioning that coexistence of text conversations that look like it's in code and insistence on transporting the bottle and the declaration that there were food beverages or gifts being transported across the border and there was substantial other evidence as well and so i had a little difficulty in looking for the substantial prejudice in this ambiguous statement i don't see cross examination that went differently than it would have or that the premise of the of the defense was challenge the way it was and mcelroy and i'm wrong on that with with respect your honor i think the impact is this the defense's theory was that enlisted as an unwitting knew by a friend in the dominican republic the defense was entirely consistent with his post arrest post miranda statement to agent o'malley of h s i the harm of the store statement is that it was directly contradictory to the second post miranda statement and directly contradictory to the theory of defense the two statements were mutually exclusive vs could not both have bought the bottle at a store and have received it from a friend and so the inquiry isn't how would the cross examination have changed the inquiry is what impact did this inconsistency have on the jury's consideration of the question of knowledge and the best evidence of its impact is the government's own argument the government told the jury that venus is changing stories alone that is without regard to any other evidence or compelling proof of knowledge and if that's so it would seem in particular in light of the strength of the government's case and mcelroy itself that substantial prejudice has been shown here and that's why the government has an argued harmlessness counsel mcelroy  said that the standard was it could not be said that the motion would have been frivolous you say the government has been argued harmlessness but you say we we still have to show prejudice i'm not clear what the test of prejudice is that you say we should look to to determine whether you met whether it's something in addition to the mcelroy standard and if so what that is so mcelroy mcelroy itself your honor indicates that reversal and remand for a new trial is required as your honor said if the motion to suppress would not have been  frivolous we think it's also appropriate under this court's new trial cases to consider as judge carney pointed out other evidence in the case so we think that if you mean yes shows both that a motion to suppress would not have been frivolous and that he suffered prejudice in the context of the trial evidence as a whole he is entitled to relief it's the latter point that i'm just asking you for what you or your test is do you prejudiced well i think we so we certainly have to show that a motion to suppress would not have been frivolous we've done so that i'm asking for that for the second issue with respect to prejudice which you say we agree we have to show what is it that you say we have to show with respect to prejudice on the basis of emotion i guess you  we've made a sufficient showing at the motion would not have been frivolous we then have to argue that if the statement were suppressed the result of the trial would have been different no your honor i think if if the court wants to consult pages forty two and forty three of our opening grief we cite a decision from this court united states versus stevens in one thousand nine hundred three decision which says  a defendant seeking a new trial based on rule sixteen error must show substantial prejudice the court lays out certain factors the nature of the evidence saw the extent to which it all on critical issues in the case the reason for its non production in the strength of the government's untainted proof we think considering those factors we've shown substantial prejudice so i think that's that's the inquiry your honor the change you're claiming is in the ambiguity of the disclosure that the government yes your honor the record is looking at the strength of the government's tainted proof which is why i was focusing earlier on extensive text messaging so again i'm at the risk of repetition recall again what the strength of the government's untainted proof was omak and in mcelroy itself a cooperating witness testified that mackerel roy gave her heroin and this was a prosecution for possession with intent to distribute heroin and conspiracy  cooperating witness testified that mcelroy gave her heroin an undercover testify that mcelroy was physically present at the house and you to comment on the strength of the government's untainted proof in your case and i guess you're saying yes at there was evidence but it was really this that was so powerful as the government made out that the whole proceeding was in effect tainted by its use is that right that is right your honor and i would encourage the court to consider contraband cases cited in our opening grief torres as lorenzo all of those cases concern similar fact patterns and so again some of the factors present in this case are also present here there's concealed well hidden contraband there's a person who makes no directly inculpatory statements the person is not named in documents material to the conspiracy there is no evidence that venus exercised a supervisory role within the conspiracy there is no evidence of payments made to us reflecting his portion of the proceeds of the conspiracy and so again it's not enough that there are suggestive statements or statements that could be read as suspicious and that flows directly from those concierge contraband cases in which there were suspicious phone conversations that had been intercepted but where there is no direct discussion of narcotics and directly inculpatory statements the contrast between the store statement on the one hand and the cello statement on the other compels the inference that venus suffered prejudice and that's why again the government side good morning may it please the court my name is ryan harris and i represent the government on this appeal the district court did not abuse its discretion in concluding that the government complied with its discovery obligations under rule sixteen by providing the statement to defense counsel it did precisely  that claim that nonetheless the government violated rule sixteen by providing them directly false and misleading description of the physical location where that statement was made you have to agree that there's at least ambiguity in the phrase first inspection is that at first inspection your out of the language of the letter was initial inspection of the defendants section of the defendant's luggage by u s customs and border protection officers and the initial inspection ashley i mean that was an accurate but let bug luggage was examined was closed up again and then moved to a separate search room your honor i would disagree that this was not accurate the initial inspection in kompas to both the public and private areas of the baggage examination room and the reason we used initial was because as we disclosed to defense counsel during discovery and came out during trial a second inspection occurred after this very significant event of the discovery of cocaine the defendant's arrest and process which is the c b p officers went through your your arguing that the disclosure in the october twent h letter was accurate but that's not what the district court found just records and it was imprecise unfortunate and imperfect your honor there's no question that if i were to go back in time i would certainly phrase the letter differently to make sure there was no ambiguity however the district court was also it wasn't only a question of being ambiguous if it was misleading as the district court said well expounding on what the district courts no reasonable we're looking at that disclosure would think it was the basis for a motion to suppress your honor of two things to respond the district court in its opinion stated that did not believe in all this quote from that he did not believe that any person in evidence was hidden or concealed no matter withheld the different district court did say that the language of letter was vague with respect to a physical location and i would agree that that is the case however they wasn't just a physical location though it was the setting there is so you know an open area and a private area one individual conducting the inspection and for people surve the inspection out of the public view yes your honor but officer santos during trial made clear that the purpose of these private search firms are to continue baggage examinations in a more private area and he said the reason they mood was a further inspection here now you never he never disclose prior to trial and you never disclose them prior to draw your honor we disclose government exhibits that show that the better the private searches are part of the baggage examination area and also the letter makes no representation to say and to divide this inspection into two separate areas the display why why was the disclosure of that statement made only on october the twentieth which was reasonably sure before trial and after you  made all of the other disclosures yes your honor so the government provided all the paperwork that was repaired during the course of this trial well in advance this particular c b p officer shortly after the was transferred to the virgin islands and so we had difficulty getting hold of him then in the preparation of trial we were prepping him over the phone and that's when we learned of the statement that same day we prepared this letter and sent it out it was simply a matter that the statement was not memorialized in his paperwork and when we became aware of it we immediately turned it over now i to address one particular premise of business relies on to say that this statement was objective the misleading which is to say that the testimony of officer santos supports their interpretation of the language of the letter and it's  i'd like to explain that a little more now at trial defense counsel asked officer santos where is the initial inspection area however critically he failed to clarify that he was referring to luggage inspections not passport inspections not  personal inspections and this is actually a very critical that that just establishes that the ambiguity of the phrase initial inspection no it doesn't your honor because the letter clarified that the letter was referring to the initial inspection of venus's luggage it had that qualifier that the let th e question did not and so officer santos response was to say i view the initial inspection error to be the primary inspection area which is an area where no luggage inspections of any kind occur only passport inspections perhaps you could move on and  and number two here is that mcavoy is distinguishable because he did not did not cite the language as the legal standard and i think that that it is not something that any court has embraced and more importantly this non frivolous distinction here's here's a question what do we do with the argument that a suppression hearing should have been held so mcelroy of the standard with respect to that is you have to ask whether we could say that the result would not be frivolous that the motion would not have been frivolous so if you can't say that it's frivolous then a motion could have been made we don't know what the result of that motion would have been but the motion would have been bad made so assume for the moment that the the statement was suppressed when all of the evidence came out if we can say that the motion was frivolous then your colleague concedes that we still have to ask the question whether there was substantial prejudice yes your honor i would it so your your colleague doesn't say mcelroy does away with substantial prejudice mcelroy simply answers the first question with respect to what do we do with the fact that there was no suppression hearing so you're on your honor well what i would say to that is that to say that that we can only articulate suppression argument that would rise to level of non frivolous and what kind of undermine the substantial prejudice standard here here we have to look at why can't we simply say ok this would have been an on frivolous motion to suppress the statement assume for the moment that the statement would have been suppressed so the prior inconsistent statement would have would have been excluded can we say  that the defense was substantially prejudiced by having the prior inconsistent statement admitted at trial but i would have to answer that your honor one is that even applying this non frivolous standard the government would say that defend has not met that burden here the facts here almost identical to the united states be broken case and no court has ever held that a defendant in a routine border inspection being asked a question that relates to routine border inspection duties here namely the importation of an item being brought from abroad and what its nature is in a setting where a defendant has no inkling that evidence of a crime has been discovered to be a custodial situation broden is virtually identical here in fact it's the here even stronger than broken because here no white powdery substance had been discovered and so that's one of the points i would make the second point i would make is that the evidence even putting aside this statement which i believe certainly would not have been suppressed and i believe any argument would have been a frivolous argument is that the untainted evidence was very strong here these text messages showed communications between the defendant and his coconspirator over a period of days intent it still says since knowledge was the essential issue i'm funny difficult to consider the text messages which were somewhat cryptic apart from the prior inconsistent statement the prior inconsistent statement as you know reasonably  emphasized in your summation and during the course of the trial kind of casts everything and that in a different light undercuts his venus's credibility substantially and that lends a different cast to why isn't that like a runner it's correct take on the evidence it's certainly a fact on which we relied however the strongest evidence that we had was a combination of the final set of text messages where the defendant indicated that he was getting the bottle the night before hand earlier than he had told the special agent and was present while it was being prepared and as the office of the c b p officers testified they could tell from looking at the bottle but that preparation process involved cutting the bottom of bottle stuffing forty pellets cocaine inside the bottle and then gluing it back on gluing a cover on to it to conceal it and this is a process that he was present for and then lied to the special agent about the fact that when he got it luggage as he was arriving to show the luggage that he would be transporting the cocaine in and that he had room he also discussed whether or not to put the roots in whether they could bring this back there was a sustained period of contact and the final text messages  i think that the court has grasped that the notice was misleading so let me turn to the impact judge total this court absolutely could strictly follow mcelroy conclude that this case is a posit to mcelroy and provide the natural remedy that we have permissible disposition for this court if we turn to consider the untainted evidence of the government's case first judge carney on page forty six of our opening brief we cite united states vs rodriguez case in which the jury could infer that the defendant and his coconspirator spoke by phone and discussed quote some aspects of the transaction including logistics but there was no proof that the participants had discussed controlled substances and again rodriguez found that evidence insufficient under a rule twenty nine standard far more onerous standard than substantial prejudice standard issue here let me say a few other things a broken case is not at all virtually identical to this case if the court reads brought in a summary order the court will find that there was actually no questioning of the defendant at all in that case and the statements had been made voluntarily  government's further discussion that venus was present for the preparation of the bottle is not at all compelled by the text messages that was the government's inference from the text messages and it would fact be an equally plausible inference that a battle that took this amount of time and sophistication to prepare for shipment could have been assembled outside of venus's presence and if that's so the government's inference for knowledge fails finally let me let me take a step back this is a case where the defense would undoubtedly have moved to suppress with proper notice of the statement this is also a statement that the government itself said twice was devastating to the defense the statement the changing stories the government alone were compelling proof of knowledge the only point at issue in this case the government did not argue harmlessness in its brief and in light of its multiple invocations of the statement to the jury  not position to do so the evidence of guilt is much weaker than it was in mcelroy and the remedy and mcelroy was reversed on remand for a new trial in light of the government's use of the statement a trial and this course clear precedent in mcelroy