the court my name is brandon back and i represent ignacio ariano bond way los the appellant here today in my limited time before the court i'd like that to address the two most salient errors below the first regards miranda the second it regards the confrontation clause these two errors when remedied combine to prevent the government from establishing one of the essential elements of its indictment namely that mr ariano bond way lowe's interview united states without the consent of the attorney general to my first point your honour's the district court erred when he introduced the fruits of ice agent cruises  interview which was performed in violation of the guarantees of miranda miranda versus arizona requires an interviewing officer to advise a suspect of a series of his constitutional rights at the beginning of any custodial interrogation otherwise the fruits are of the interview are in admissible at trial the supreme court defined custody for miranda purposes in stansbury versus california to mean restraint on freedom of movement to the degree associated with a formal arrest the supreme court defined interrogation for miranda purposes in rhode island vs inis to mean words or actions taken on the part of police officers that they should have reasonably known would elicit an incriminating response counsel what would it have taken what is the missing piece under miranda that your client did not have the benefit of miranda generally serves as a prohibition against statements that are held by a person in custody so what as i understand the testimony of the agent himself it was explained that the defendant could get up and and leave he could not have to answer questions and i'm paraphrasing the testimony what is it that's the missing piece that would have been in compliance your honor miranda protects both the defendant's fifth amendment and six  rights so the missing piece here is the same missing piece that we saw in miranda versus arizona which is him being informed of his right to counsel is right to counsel to be present at the time of any custodial interrogation  giving to custody here before i describe kind of the circumstances that i think make this custodial i mean this interview custodial i'd like to point out that in the briefing before the district court the government didn't challenge the custodial status of this interview also if we looked at page four eleven the judge found that he was in custody ok so so you believe the custody issues not on the table well it's certainly on the table but to reinforce my perspective as to custody both the district court and at least at the time the government were in agreement that this was custodial because it seems that there's some tension itself is not per se because sto deal but that doesn't mean that a person in prison can ever be in custody for miranda purposes in fact we saw in mathis versus united states also before the supreme court a case where a person was in prison in an interview just as here and was found to be in custody and interrogated for purposes of miranda so we look not just to the fact that they were in prison although i think that points that's a factor that's an indication of custody certainly it's not per se we look for additional evidence of restraint beyond mere in prison but he didn't have handcuffs didn't have handcuffs that's correct and he was told he could leave at any time and didn't have to answer the questions and it was a short duration these are the factors location of questioning duration statements made presence or absence of physical restraints and releases that are not released at the end of all of which go to those factors in varying degrees that i think establish a degree of restraint that is tantamount to that of formal arrest in certainly more so than we would see in the general prison  population the facts i'm referring to are in the record on pages three sixty two to three sixty five of the record in these are what's being disk by agent cruz primarily on direct examination what agent cruz describes is that banuelos was taken out of the general population and moved to what's described as a small room about the size of a jury box he was escorted there by prison guards who  watch during the interview he was placed across the table from angel cruz appears to be another ice officer and he was asked a series of questions all of which were about his immigration status in his legality here these circumstances are what we would invision when we see a station house interview wait refresh my memory something you just said he was asked about his immigration status and his legality of being i thought the questions in my recollection and i could be wrong but the questions that were the agent cruz asked him or fact questions about where he was born what citizenship but of course your argument is that those questions themselves on the basis of the elements of the crime but he wasn't asked about or was he asked about legality are you here illegally or you know have you reentered the united states without the consent of the department of homeland security he was asked fact questions was and yet to be clear he was not asked to provide legal conclusions instead what he was asked in we can see what he was asked by the way pages ninety three i believe to ninety seven which is this document that agent cruz filled out if you look at the document one of the questions was did you receive the consent of the attorney general to be here and it's one of the two places in this case where that evidence actually came in the case i think that's most closely resembling this case is mathis versus united states before the supreme court there are a person was in jail on another state oftens person was  saying that this person should have received miranda warnings prior to this because they were in custody at the time of the interview and that line in life questions was an interrogation one of the facts that the court relied on is that tax fraud although it can be administrative often leads to criminal prosecution and one of the things i discussed in the briefing here today is that illegal reentry of course is one of the most commonly practiced of the points more towards what's interrogation so we do have two prongs correct that's absolutely right here my read of the record is that the government not only didn't challenge custody they elicited that he was in custody and then you have a district finding which explains why they haven't pressed any objection to custody so my focus has always been interrogation but but here's the question let's say they didn't challenge custody we could still affirm on lack of custody if we look at the record think that is that correct that's honor so then on custody it does look like it's less custody ill if you have multiple people all sitting there answering the same administrative type questions your honor i'd like to respond in two ways yes first i would characterize these questions as criminal in nature but second the fact that you have two officers across the table or the fact that it's a multi use what was your client ever told he was free to leave the room as opposed to advise you don't have to speak to me your honor i'd have to look back at the transcript my recollection is he was told you do not have to answer these questions that's what i thought and that was the same thing mr miranda was told and you ran to versus arizona it seems crucial whether a person is told they can go back to general population that we're saying is not custody all they have to be told you can leave this room and i didn't see that that fact was ever established and i'd like to point this court tonight states versus lugo which is the district the case the district court found as its primary authority for reaching its own conclusion united states versus ludo southern district of texas there was custody under indicted identical situation all the court found there was not interrogation and what you do if we're focused on interrogation because of the unusual way facts were developed here and the government's clear focus was interrogation and as i read the discourse ruling its focus was this conclusion that this mr cruz didn't have the subjective intent to elicit criminal so that's to me a mathis interrogation question well that's a stan versus california question ok the supreme court said in no uncertain terms the officer subjective intent is absolutely irrelevant even if the officer doesn't believe the person is and therefore my question though is we know that thousands of these go on cruz said that and he never gives miranda rights so does the federal defenders position here what's your limiting principle are you saying that all over the country all of these have been done in violation of the constitution you know your honor in these types of circumstances yes but there is a routine booking exception that this that the district court below adopted that's also from the ninth circuit that is the exception here this is not routine booking he had already been booked incarcerated  etc and if you look at salvado which is the case the government relies on there the defendant was trying to suppress the routine booking questions but the corollary to aging cruz in that case actually did give him around a warning but the problem with that is anytime an alien has illegally re entered already so thirteen twenty six has already happened routine booking will largely confirm the crime but it usually will not be custodial in that's what i thought so your limiting principle is these are rarely going to be custody that's your limiting principle is and there are rarely custodian in routine booking the typically the questions will be asked what is your name where were you born your dot typically can be asked did you receive the permission  the attorney general to be here that's the questions asked by the the criminal alien program of which agent cruz was a member but cruz says he's never testified in criminal court your your honor his direct supervisor is the one that referred to this to to for prosecution he was a member of the unit which is trusted interested with the prosecution of criminal aliens and he certainly said he was familiar with the crime of thirteen to ask questions in your limiting princip that is not normally custom in although not at all what what what would it have made what would have made this not custody would it have just been and you can go back to general population with that in your mind would you agree that then suggest yes if the circumstances made it not circumstances would it just be had they said not only you don't have to talk to us but you can get up and leave and there will be no consequences for you doing so and united states versus lugo describes the consequences if a person refuses to answer these types of questions and that's one of the reasons the court found it because no deal so i do want to comment on my my second point your honor second the district court heard when it had made it the certificate of non existence without the defense having an opportunity to cross examine the clerk who actually searched the database for its melinda's the us versus massachusetts before the supreme court united  martino's rios before this court both have held their certificate of non existence is a testimonial statement for purposes of the confrontation clause here the testimonial statement the certificate of non existen databases to see if mr ariano banuelos had submitted formal i two one two which is the seeking the if you sent consent of the attorney general but if the second person is doing it at the direction of a supervisory someone in a supervisory role are you saying that in this case it's fairly simple because i i think my understanding is really have two people involved in this search one of whom testified but if there's a search for  existence of something and it involves twenty people searching in various sources or potential sources of information is your position that they would have to put on the witness stand all twenty people to describe a little segment of research that he or she did for citing judge i see i'm running low on time may i answer the judge's question to certainly include your honor footnote one of melinda's diaz which i'm sure the government will want to talk about says that the government gets to decide what evidence and what proof in what claims it wants to make a trial if it decides to put on evidence that's the work product of twenty people all of which is prepared specifically for trial making it testimonial the answer is yes they have to do that if we look at the history of modern confrontation clause cases crawford melinda's the ball coming it's the supreme court pushing back on prosecutors trying to cut corners with purposes of confrontation clause that's exactly what happened here thank you your honor can you address whether or not it would be harmless error or standard you're correct your honor and if we look at martinez rios it seemed to conflate harmlessness and third prong so it's a very similar analysis here if we look to the closing argument made by the government it's on page six forty two of the record the only evidence that the government argued closing for the lack of permission which is an essential element of the government's burden was for still a dolphins certificate of nonexistence this was admitted without the possibility of cross examining the person who searched the databases so yes without the miranda violation without the confrontation patient clause violation the government would not have evidence on an essential element of its cause of action couple ways of looking at it so you don't need this point really because if you win on the other one you win i to say didn't even argue harmless i think we if we can win on miranda because of the circumstances at least of this confrontation clause issue i don't think it can be used to say that the miranda violation is harmless thank you thank you you matter did they did did the officer say you can leave or not in terms of the actual warnings that were given your honor i believe the record reflects that he was told he has the right to refuse to answer any questions that any statement must be freely and voluntarily given and that any statement may be used against him he was not expressly told that he could leave thank you in answer to chicken since earlier question can this court reach the custody issue yes your honor we believe they can the context of the remark that's made below by officer cruz and the context of the district court's statement both clearly refer to the fact that the defendant was of the room he was in so the question mr ball and the other inmates are all definitely in custody correct yes that's after you elicited how small the room was details of the wrong doesn't sound like it's oh  mean as far as walking out of the jail they are in custody of the jail that's the level of question that wasn't the limitation on the first one the one i just read i believe that's the context of the entire exchange or on what you agree the context was also right after the description of the do your honor and furthermore i guess the two other fact questions or the district court seem the ultimate finding of fact that's relevant here which is why it looked to me you never pressed and denied custody was certainly as a factor matter the defendant was custody comma meaning he couldn't get up and walk out your honor and in the context of incarceration that's absolutely right i think that last clause meaning he could not get up and walk out the indicates that the focus  this court can obviously affirm on any basis that supported in the record and this court is characterized that as an elementary proposition with cases too numerous to cite that any basis supported by the record can support a judgment below what is an objective test would reasonable person feel they can leave district court didn't make any of the findings relevant that you elicit contrary findings that just makes a finding of fact opposite you don't press it and you're asking us to just still look at the record and say well this man in that setting that room would have thought in spite of not being told he could walk out he could have walked out that's what you're asking us to do respectfully and i don't think the district court made a finding of custody for purposes of miranda that did not play statements that wouldn't get up and walk out did they just say that you could not get up and walk out of the jail absolutely he could not get up and walk out of the jail no but you also just said as your first answer today that he was never even told he could get up and walk out of the room and the court makes a finding couldn't get up to work out you're asking us to edit that and say but that meant people can't get up and just walk out of jail which i'd be surprised if the court felt i had to make a finding of fact the prisoners need to cannot know they can't get out and walk out of the jail it seems so focused by you and the court that he couldn't get out of that room yet i think if we compare the facts of this case to the facts of how's it becomes clear that this case is actually far easier than howells was told you can walk out of the room that's correct our house was also questioned for five to seven hours by deputies who were armed he said several times that he no longer wanted to talk let's was not for my arguments let's assume he was in custody because that didn't seem to be contested it's matt facts specific it's objective in the person who's being interrogated the district court said here's why i'm not suppressing i find officer cruz's subjective motivation was purely administrative it focused on would you agree that's a misstatement of law it is not what the purpose of the interrogation now because if you go on to the end of the court's ruling at four and nine before eleven the court doesn't stop with that subjective determination he goes on to find that the purpose of the screening interview generally is administrative that the screeners are there in administrative capacity that at the time of the interview it was strictly an administrative pro to a subjective determination did he have to say that it was subjective too but no he did not say i'm in the criminal alien section and i know the sworn statement of a list it could go to a criminal referral isn't that exactly mathis tax persons in  notably also in math this timeline of events here i think is very indicative and supports the fact that there was no custodial interrogation here the last visit to the jail in mt this was eight days before a full fledged fledged that's against the government's argument here this man has committed every single element of thirteen twenty six crews gets on the stand and he says i assembled all the documents corresponding to each element i asked him every single question relating to every element we got a sworn signed affidavit i mean the criminal section i'm no it's going to go to my supervisor and i know he can refer and my question to you if in that fact is the government's position that in any thirteen twenty six prosecution the fact specific analysis we have to look at the context of the specific interview that issue and the record here is that agent cruz says he conducts these interviews at the state jail once a week every tuesday his only goal is determined to determine whether an inmate can be deported but it's his goal is that was what the district court held and i think that's a legal error is what would an officer believe would be reasonably likely to elicit it's not his purpose or goal that was the toxin just gaiter the tax was it was there to illicit questions on the tax case but there was a possibility of a criminal prosecution rather we have no disagreement about the fact that it's an objective inquiry and we think the district court got it absolutely by the district made both subjective and objective findings it did not need it to make the subjective findings in addition to the object of findings but it did it would be above and beyond the standard that it needed to do in order to demonstrate that this was not  honor's i think the thrust of your honor's point is this a pretext is the government engaged in some sort of conspiracy to put the arm of the u s attorney's office into these screening interviews no your honor that's what this record reflects the timeline and issue here this screening interview happened in august of two thousand and fifteen he was not even referred to officer brown how for the consideration of criminal regardless of the stage at which this interview happened the defense makes much of a purported temporal distinction between this case and gado and rodriguez that distinction does not hold water because the defendant f criminal liability get either stage anytime there is a deportation interview prior to deportation that individual has already completed another criminal often which is thirteen twenty five so the defendant  stage and at the illegal entry reentry stage and so whether miranda attaches cannot be made to turn on the happenstance of whether one criminal charge or another is ultimately brought did about the right to appointed counsel and the consequence of the defendant's rule will be to guarantee appointed counsel in hundreds of thousands of little administrative proceedings that take place in this country every single year not the ice agent doing the booking says you can leave now this is when i went way out of his way to make the interview noncustodial why is he given these first two right because the agent  trying to clearly communicate you don't have to talk to me the district attorney the end of that colloquy expressly asks cruise do you ever have people who don't want to talk to you yes what happens nothing we base our investigation on the facts do you have any ability to coerce or punish them no and at the beginning the court was quite startled the government need to draw a line on this at all and said you're close to reversal we'll see with th thousands of these and i've never testified in a criminal case so what the government i'm not pretext the government just noun if we were to hold the way you're asking us to thirteen twenty six prosecutions would always just stand on the confession from a person who wasn't mirandized absolutely not your honor why not because the inquiry in every case has to be about the specific facts and the specific context of the interview and so so in a situation for bundy's i think is a great example out of the ninth circuit that's got to distinguish it so got to says this is not like the case where an i r s agent shows up talks to an inmate who's already in jail on an immigration off and comes back three hours later with a warrant in that you don't need something but you push for it in then it messes up everything that's a more colorful than that but i don't share it what's going on with that i certainly take out his point i agree th history i think that testimony your honor actually goes directly to the question of whether this is a pretext or any sort of systemic flaw in the system in ten years as a deportation officer so is the first time that he'd ever testified in court right then use but but i'm just going to interrupt you because we would be the first circuit then that a circuit level would say when the ice booking which has no criminal purpose happens after the alien has entered illegally and that ice agent has picked up every supporting document and the defendant then swears to it in ca in a jail brought in that's all you need we would be the first circuit that would say even there are no miranda you're getting a confession to everything no miranda you are clearly applying i think the second circuit and the ninth circuit on these facts would lead to the same conclusion you're on its origins before he left those those cases did involve our earlier interviews lugo facts specific it didn't help in the brief when you said well it's a combination of the two prongs you tell me which of the two prongs is more solid which of the two would you tell me is more solid that there was no miranda no custody or no interrogation i think the government went on both ok i asked you which do you think is more it would seem to me the custody record is very ill presented you didn't argue below did you we did not below your honor you didn't argue to the court below that he wasn't in custody we argued custodial interrogation as an umbrella term your argument is correct that we did not pass that as a separate from ok so i would think the better prong to be pushing there is a temporal distinction but it is not and meaningful temporal distinction because there will still criminal exposure at either stage but an agent wouldn't think the answers being given are reasonably likely to commit to convict for a crime that hasn't yet happened they're interviewing people before they're deported of course u s agents would think they're not going to break another long come back they're going to answer will never see agents assume people are lawful it's a completely different scenario when the agent goes to them in jail afterwards you're here and up assembled every element of the crime to get you to swear to it but i'm not going to ask you i'm not going to mirandize you and say watch out you could be convicted by your own words now that's totally different personally looked at the entire a file she looked at the point out she certified and she testified about that certification if she hadn't looked but she still had signed which is the government's position signing is the magic no your hon that ambiguity is because there were no questions asked of that witness below and under this court's decision rose there cannot be plainer on that record i was the court is for the questions we would rest on our briefing as to the remaining issues in the case understood correctly when asked directly what is it that would prevent all of the thousands of interviews that ice conducted in the administration contacts every year from turning into guarantees to appointed counsel he said well in the ordinary course in the booking process you won't be in custody there will be no consequences if he just does what he's done for thousands of times never testified in a criminal court no consequence he sticks to the job he's always done likewise no consequence if the government pushes on custody which seems to me as simple as possible you just tell a person guess what you can go back to general population no consequence you have no custody you can offer the statement  administrative context where these thousands of interviews happen every single week if the defendant is told not just the two things he was told here but he's also told you have a right to appoint counsel before you talk to me about whether you or i would you your honor i'd like to respond to four points if i can and i'm going to try to take them in order of importance first on this this notion that it would somehow bog down the system if a person is not entitle to appointed counsel every time they invoke their miranda rights in an interrogation counsel's going to be appointed at the arraignment after the indictment what miranda says is you don't have to talk until you've had an opportunity to appoint a lawyer  need to rule inform you of your right of that we're not going to see federal public defenders coming into in the middle of interrogations there any more than we do see in any other type of case be it a station house interrogation or otherwise second on the question of the district court's finding below because the district court did make a finding of custody and relied primary only primarily on a case that found custody to affirm on the absence of custody this court would have to find absence of custody as a matter of law if it finds that the right of interrogation was violated then it should remain under for reconsideration bill before the court below it's the government has cited as its strongest case united states versus salgado before the ninth circuit in two thousand and two i urge this court to give a close careful reading of salgado salgado is not on point in fact it demonstrates exactly what should have happened in this case in salgado we see three different officers appear we see the officer that interviewed mr salgado prior to his original deportation then he chooses on his own volition to come back to the united states he's arrested he's asked questions routine booking questions when he's first brought in and then he meets the third officer is the one that comes in interviews him just like agent cruz did here the argument mr salgado made a night of states versus salgado is i want to suppress the conversations to the first two officers the reason he didn't try to suppress the interview with the officer just like we see agent cruz here is because that officer read him his miranda rights and he stopped the investigation invoking his right to counsel before answering those types of questions he wasn't given a counsel right then but he was given a right to in investment interrogation so salgado shows what should have happened here it certainly doesn't support the government's position important point here there was a question regarding confrontation this third person that searched the databases didn't actually sign the certificate of non existence well both crawford and ball coming discuss that possibility in both of them state very clearly it's footnote three in crawford that the lack of a signature is not going to erase a confrontation clause problem because that would be too easy of a work around for the government likewise on miranda saying that oh i didn't refer the case for prosecution but my direct supervisor did would be a very convenient and i say that somewhat  cynically work around for the department of homeland security to not ever have to mirandize anyone prior to asking incriminating questions on miranda if we affirm the district court that you don't need miranda in these situations with that create a split within the circuit no if we would reverse the district court and said you do have to mirandize in these facts would that create a split it would not would not be in tension with the cases cited and i think it would be in tension by the way with the supreme court in mathis versus united states which presents a very similar situation in the supreme court said you have to have miranda here i'd like to to briefly respond to a comment you made judge l rod is this happening now certainly one of perhaps one of the implications there is we have a zero tolerance policy on immigration offenses we're going to see these maybe perhaps always lead to criminal prosecution and i wonder if that should change the way the government views it i believe the government said we're still not  people thirty percent of all prosecutions in the first circuit are illegal reentry for these reasons we asked this court to reverse in the land thank you your honor thank you we have your argument that conclude