and we're here counseling us again shaffer good afternoon your honors may please the court my name is allegro glasshouse there and i represent appellant gregory shaffer goners mr schieffer twice asked to leave the interrogation twice he was told he was not free to do so the only reasonable conclusion was that he was in custody now and isn't there other reasonable conclusions or that he would have been difficult for them to complete the investigation the work that they were doing if he was that way that they might wish to ask him a question or two about what they're down to where that where they could go and what they could look for while the search was going on the mr schieffer was only told that he wasn't free to leave and maybe he was told that it was a security issue that's what the agent testified but we know that there's it's not a there's a totality of factors that courts take into account in deciding whether persons in custody or whether he's temporarily and he was told that he couldn't leave even though his requests to leave were quite serious he was saying i need to see an attorney and i need to get to see that attorney because he has money i need for medicines to be used to the type that's not asking for an attorney in terms of i'm not suggesting it is but what i'm saying is these are the types of serious requests that you a reasonable person would think unless i'm under arrest there's no reason i couldn't leave to to complete these tasks a lot of it would depend on the time that's involved pump how long was she kept interrogation took place over the course of two hours there's about an hour of questioning over the course of two hours when one of the agents got up to walk away another one came to sit with him there were nine agents in his any search that might go on evidence that now is probably most probable cause of course they're entitled to arrest him and but that's one of the factors that courts look to whether the person is in fact allowed to leave with the interrogation supports that it wasn't reasonable to think that they weren't under arrest earlier here we have two factors that aren't present in any of the cases that the government cites to first saying that a person isn't in custody in fact most of those cases they point specifically to the absence of any statement by law enforcement that you're not free to leave that's a crucial indication that the person is not in custody the government hasn't pointed to any case where the person is told you're not free to leave twice and then actually is arrested at the end of the interrogation where any court has found that the person wasn't in custody and the case most recently decided by this circuit united states people  relevant here because in that case the circuit said those factors info go right up to the limits of what is constitutional interrogation without miranda and the court points out info that the defendant was never told that she couldn't leave and that she was actually allowed to leave at the end of the interrogation in the absence of those two factors here is crucial and none of the other totality of the circumstances dispelled that the reasonable conclusion this shaper would have had that when he's told he can't leave twice that he cannot leave the government says it's temporary and your honor has suggested it was temporary but mr schieffer wasn't told it was temporary and this is an objective inquiry would a reasonable person think it was temporary the exit was blocked further indicating he wasn't free to leave and he wasn't told he'd be able to leave at a later point that's custody and in this case that that error was important because this interrogation reveals statements from mr shafer admitting that the e mail address and the computer are his and that's where the crucial e whether he could have declined to ask answer questions on he doesn't ask to not answer the questions what he asked for is to leave and when you're in a police dominated atmosphere and you're not allowed to leave to see your  attorney leave to get your medicine he's actually taken to the hospital after interrogation as well the only thing that every so person could conclude is that they're under the same circumstances as an arrest to find otherwise would be new case law that would be contrary to what this circuit and other circuits in the supreme court has hel and this wasn't the only error and mr schaffer's trial i'd like to move to my second point in mr mr shaffer's trial so short trials a three day trial and we have an hour and a half of video evidence of unrelated crimes crimes not about the charges he was facing if this was any other video evidence shown it was less than the time of trial showing these other videos  less than an hour i believe one video is eighty seven minutes and then there were two short videos for to that play the whole video there were two short clips that were six minutes and as well there was one that was much longer a total of fifteen minutes  through fourteen does cover it i'm arguing that rule fourteen is unconstitutional it forty four thirteen or thirteen yes if this were any other type of charge we would probably in combination with other evidence in order to convict you can't can't just make a convict a person a crime a because he committed a crime b and c yes or no but this court has never ruled on the constitutionality  thirteen and for thirteen is different from four be precisely because it's unlimited it's not one of the records ruled on the constitutionality of four or thirteen other courts have they found that it's constitutes a have they pointed to the fact that rule three saves it from unconstitutionality because it's bit too prejudicial it won't come in but as a practical matter and by design in the passage of rule four thirteen rule for a three is merely a rubber stamp the the government hasn't even argued that the error is harmless because this evidence was so prejudicial there's no way the jury couldn't have considered it as perhaps guilt of the entire offense if not incredibly  crucial difference here between for a for b and for thirteen is here it comes in for any purpose including for a propensity to convict him just because he's a bad guy to say once convicted of a crime then you must have been convicted of the next one is once convicted of a sex crime then you can take into account the doubt into account in deciding his guilt on another such right and the fact and that's what i wanted to point out here and the fact that it's a sex crime is what clouds all of our judgement about this evidence if we were to say once a robber always a robber we'd agree that one wouldn't be appropriate that's what this was addressing when they when they passed four of four thirteen right but social science evidence and even the department of justice themselves have since de bunked the idea that sex offenders are somehow more likely to be to recommit those offenses then people who commit other crimes that's something that the offenders because of the danger that they post in the community generally because of the possibility of recidivism but propensities are not are not a racist i mean they're not it's not like and a crime of opportunity scientists who researched this have concluded that it's not actually true that people who commit these crimes are more likely to recommit them than people that commit robberies and it's the fact that it's so difficult to look at these sort of offenses in an objective way that makes it your judgment that congress reached that is these social considerations of this particular policy considerations underlying the pass this was this is a matter that congress reaches a as a political decision congress reaches a political but that's true but congress cannot reach a decision allowing evidence that undermines the defendant's due process rights that that's true if he if he if he's not going to get it if it's going to undermine or fair trial and that's the that's the issue on whether it's constitutional exactly right or if we adopted your view we be the good to have done that true your honor but there aren't that many courts that have not recently there are two state courts that have recently looked at very similar laws and found them to be unconstitutional instead proposing something  normal evidentiary standard that applies to all crimes where evidence can still be admitted if it's relevant to a specific limited purpose and the jury's instructed they can only consider it for that  the evidence soley under for thirteen of the district court hedge its bets for say four thirteen and four it was just admitted under four thirteen and the jury instruction indicated that because the jury instruction didn't limit you're from the eastern district of new york which has a court has a lot of experience should develop in the law of evidence as well as having many advanced thinkers on these issues i'm surprised because he's never been dealt with directly by any of the judges in the eastern district or has it not that i know of your honor i was surprised as well when i got this case it hasn't been dealt with by the good afternoon your honors and may please the court my name is peter baldwin and i'm an assistant united states attorney in eastern district of new york i first like to address mr shavers argument that he was in custody when he was interviewed by law enforcement agents there's no dispute that mr shaffer was told that he could not leave his office during the interview but as the cases and this another sure circuits make clear a person is not necessarily in custody simply because he's not free to leave an interview instead the restriction of an individual's freedom of movement is just one factor in the analysis of determining whether the person is in custody and rather than focus solely on whether mr shafer was permitted to leave his office at a particular point during the interview this court should examine as the district court did all of the facts and circumstances surrounding the interview in order to determine whether mr shafer was in custody and in this case the totality of the relevant facts weighs against a conclusion that mr shafer was in custody for example it's undisputed here that mr shafer was never handcuffed or otherwise physically restrained at any point during his interview and no point during the execution of the search warrant did any agent draw a weapon mr shafer was interviewed in the familiar surroundings of his own office he voluntarily agreed to be interviewed he was allowed to drink coffee and smoke cigarettes during the interview he was told prior to the interview that he was not under arrest and he never asked to have an attorney present during you know all that said mr schaffer was told that he was not free to leave the interview when he asked to leave the office the case each and twice told him that he couldn't leave because doing so would present and i quote a security issue given that the search of his office was ongoing and that there were boxes containing evidence blocking the exit to the of security the security is your honor is the fact that at that point in time the agents who are searching the office have begun to compile evidence pursuant to the search warrant and they are taking it out of where it may be stored in mr shavers office they're laying it on the ground of the office they're laying it in boxes in the office and all the stuff is piling up right in front of the eggs to curity issue human kind of chain of custody cushions i mean i think that's wh they're not worried about intrusive in anybody intervening no i don't i don't think that there's there's a a real concern about you know letting somebody else in our or mr schieffer attacking an agent or anything like that i think probable cause to arrest it's possible that you go in tell a guy can't leave and don't give him his miranda warnings in order to see what what he might say in the warning when you could arrest and gives your brain i think that's probably true in a lot of cases your honor where where search warrants are executed the the fact of the matter is there's probable cause to go into whatever premises i'm saying probable cause to put him in custody and arrest him and then conduct a search i mean you could do that they could have done that and you would have no complaint and you would you would argue that that was perfectly appropriate they could have done that in this case your honor but in fact they didn't and there's nothing that is given the totality of the facts or there's nothing a grown up that no no no i'm not saying it's necessarily erroneous as a matter of law i'm just trying to understand why the by any of the facts in the record in this case it's certainly a possibility but i don't believe that it's warranted by what's in the record of i'm not saying that i don't want to ascribe bad motives to these agents in the absence of some some definite proof or question but it is just a troublesome aspect c'mon i understand your honor but you know certainly there i think the agents have differing experiences to as to whether a defendant is going to talk or agree to be interviewed there's no guarantee that that even going in the defendant is going to say anything when agents show up to to execute a search warrant so certainly i understand the range of possibilities that the corkey consider in ascribing motive to record reflects on that point your honor is that at some point mr shaffer does ask should i have a lawyer here and the case agent responded with something to the effect of i can't advise you on whether or not you should have a lawyer if you want one you can get one and then the rules that say that that doesn't trigger a miranda duty because as a political request i think the other important factor here to consider on that point is that after that discussion or back and forth mr shafer continues to answer questions he doesn't appear to have any reservations about continuing to answer the agent's questions it's result of his for whatever reason having to stay in place what happened how would you describe what happened i should be asking opposing counsel this question and i will so that so what is it that that triggers the concern here you mean you can see what happened as a result of his remaining there how would you describe what happened well i would describe it as at the beginning of the search warrant as the agents enter his office mr shafer was approached by two agents who asked if he would agree to be interviewed he said he would those two agents took mr shafer off to the side out of the way of the other agents were conducting the search that interview occurred while the search of mr schaffer's office was ongoing but in view of mr shaffer and the other agents and as a as i've described before  evidence that is compiled as is brought out and placed as of the the layout of the office is brought out and placed in the corridor that leads out to the the exit of the office building mr shaffer is  there at some point during or some point the other agents finish up their search and the lead case agent goes over to consult with these other agents to see what they have found there is no evidence that he comes back and resumes questioning mr shafer at that point in fact what the testimony is is any evidence presented at trial that emerges from this particular situation other than the are listed from the interview are that he admitted it was his office he admitted that the laptop computer was his and he provided the password he admitted that the e mail address that was used to  to communicate with the victim was used by those i think are probably the most important and as we address in our brief probably the most important of those are the e mail in the computer and i think there it's our harmless error argument because there's ample other evidence in the record to support a conclusion that a mr shafer uses this e mail address and b that the computer is his with respect to the e mail we have e mails that are admitted  or emitted a trial that contain a phone number that is subscribed to mr shafer and i think frankly most importantly any time that e mail address is used to set up a meeting mr shafer is the one who's there so the your honor it is clearly mr sze other video we're got regarding this is so much you can at one point there are multiple videos involving this victim and at one point mr shafer one thing that i wanted to address right off the bat on this issue is the confusion about the length of these videos that were that were admitted and shown a trial and i just want to be very clear th only thing that was and knitted at trial and shown to the jury were these edited clips of these videos in total these nine edited clips were fifteen minutes or less of a video time so i i think there was some confusion about that and i just wanted to be clear on the record is there any accounting for the sequence between the ti between the agents telling him that he's not free to leave he can't leave for security reasons and the statements that he made with a before and after in other words or any of the statements made prior to that admonition by agents your honor i profess that that i don't think it's not true i don't think the record is clear on that point but what i think the record would support is the fact that the interview was going on for some period of time before there was any request to leave i don't think it that the record supports a conclusion that there was say thirty seconds of questioning and then he has to leave so you know we're made him transcript a curve that right there is no verbatim transcript of that hearing so i can answer with with particular clarity but what i can say is i believe the records would support a conclusion that there was some amount of conversation that was had before us i think that's correct and just very briefly to address the rule for thirteen issue as the court pointed out in my opponent's argument every other circuit that has addressed this argument has soundly rejected it and held th rule for thirteen is constitutional and doesn't violate a defendant's due process rights it's well settled that the due process clause will only invalidate a rule or an evidentiary rules like rule for thirteen only if it violates fundamental fundamental conceptions of justice which lie at the base of our civil and political institution to be fair the other side even the department of justice department was in favor of working and i think that that's not necessarily true i think the department was in favor it maybe one of the few who was who did come out in favor of it was a lot of there were a lot of witnesses comments on one or certainly i think that's true your honor i think there were issues from in the passes of political there were criticisms of the rule and i would just simply note that i think it's it's equally important that in that the opinions that have considered after the passage many courts have pointed out the important justifications for having a rule like this and made note of the justifications that congress gave at the time of passage and courts have subsequently come to see that there are important justification for having a rule like this in the particular types of cases where this evidence is allowed that this rule part of an act of congress this rule in its companion wasn't the department was the judiciary post there was some negative comments from the judiciary and i think it was committee it was it was against it yes in a it if the the balance under four zero four i mean you know four zero four was thought to be a pretty good rule maybe a lot of defense lawyers don't like it because of so many exceptions to the propensity one has to be pure as you can come in for a whole lot others it certainly is a different analysis than four or four but i think importantly as we've we've tried to stress in our brief you still have the four zero three balancing and while my of my my opponent seems to say that that's a rubber stamp i would argue that that's not true principally because i would i would concede that there's not a lot of case law specific to that point but what i would argue and proposed to the court is that four of three would tend to operate like it did in this case where the if you want to call this the specter of four o three is there in terms of what evidence the government is putting forward to admit pursuant to rule four thirteen and evidence the district court is willing to allow the government to do so what you had in this case was the district court saying alright the government wants to admit these videos tell me the specific clips of these videos that you would propose to admit so rather than admit entire videos that are you know ninety one hundred minutes in length it gets whittled down to that fifteen minutes and that's how i would propose or argue that for zero three typically is you know also there's another  point specific to the point that you can't convict mr schieffer soley based on the evidence that's included in the videos that was given to the jury and that instruction addressed the key concern mr shavers trial counsel had about the four thirteen adams so just to if they could just take thirty seconds certainly one i just wanted to address one last point and that is that  evidence here would show that there is the probative values of these videos was extremely high as the court has as noted in its its questions to my my opponent and they certainly were not outweighed by any prejudice know to the fact that there is only fifteen minutes the district court concluded that they were neither more serious nor more inflammatory than the allegations or other evidence in this case and any potential prejudice as i've alluded to just a few seconds ago was in fact cured by the instructions that were given by the district court both at the time of the admission of the evidence and at the at the end of trial so in conclusion both mr schaffer's arguments without merit first a reasonable person would be in mr schieffer circumstances would not have understood his interview with law enforcement was being conducted to read the pursuant to rest like constraints as such mr shafer was not in touch to be for miranda purposes and second the edited video showing mr shafer engaging in sexual assaults of other young girls  not violate mr schaffer's due process rights and they were more probative than prejudicial thus they were properly in that pursuit for there's no doubt that the constitutional question was raised in the district court yes your honor the due process argument was raised in briefing on the government's four thirteen motion  just to start where where the government ended rule for thirteen you're having this discussion about whether or not these videos of uncharged crimes could be the exclusive evidence of conviction that really turns everything on its head right the point is that he's supposed to be convicted proved beyond a reasonable doubt of the elements of the charge crimes not whether or not he committed these other unrelated crimes for thirteen puts a thumb on the scale it's meant to to make it more likely that people will be convicted of these crimes and that dilutes the fundamental protections for criminal defendants and that's why it's unconstitutional with respect to the custody issue i'd like to turn to judge walker's point about the the evidence they had when they walked in to this interrogation they had more than enough evidence to arrest him and i'm sure that they intended to arrest him and they did arrest him they speak to the u s attorney the agents during the interrogation there's no question that mr shaffer is going to get arrested there's no question in mr schaffer's mind in a reasonable person's mind that when he cannot leave his office when he is explicitly prohibited from leaving to see an attorney yes if he needs an attorney but he can't go see one he's prohibited from leaving to get his medicine he's explicitly not free to leave his explicitly told the exact phrase that this court and other courts use to determine whether or not someone is in custody the only reasonable conclusion he could have is that it was like an  as far as the the timing about the statements because the record is unclear if the court finds that he was in custody it would need to suppress all of the statements because we don't know exactly when the statements were made and there were two