error on so the only question is whether there was a harm whether thomas beyond a reasonable doubt it's our position that at least as to the motive element of the via car offense that the error was not harmless beyond a reasonable doubt  the government used the unconstitutional evidence to also elicit an improper opinion from their detective that he believed that the statement that was improperly admitted showed that there was a gang retaliation all for the murder so it's our position that just on that error alone discord should reverse at least all the via car murder related counts this issue does bleed over into the first issue which is what what is the government required to show to prove the motive element of the viking fans and it's all of the news they would use they just a little slower yes your honor i don't understand two issues which are the second issue is whether there was evidence was emitted in violation of the confrontation clause and the government concedes that that was constitutional error by and so the only question as to that issue was whether they can show up on witness beyond a reasonable doubt it's authorization that the government use the improper evidence to show the motive elements of the  offense because they had their detective use that very evidence to give an opinion that the murder was committed as a gang retaliation murder and so for that reason alone all one which is the via which is the rico conspiracy count that's when you claim there is a jury instruction that's correct we also would claim that that count should go due to the error that i just discuss sustained count one which is the rico conspiracy were witness intimidation number one murder number two and conspiracy to commit murder number three it's our position that the murder and that i was discussing the confrontation clause or the concede that it was preserved so it doesn't have to get to point out as to the right ok so that's just a harmless beyond a reasonable doubt standard the first claim that position that the defendant objected at the instruction conference he submitted a pleading where he objected and then in the closing argument when the prosecutor emphasized defective portion of the instruction he objected again so what's our position that i can give you an e r cite if you need your honor so it's our position that that issue is our position that the statements issues taints all the counts and the government concedes that they have not argued harmless error in their briefs as to the statements issues so i believe they can see that if the court agrees that there was a problem with admitting the defendant's post arrest statements that all counts are vacated given their waiver in their briefs this is not the way you would well we would certainly argue that they are independent reasons for reversal but on acumen o supposed to his mother's car nothing the evidence that the government has is that case scenario they have the improper evidence that was mr young was driving the car that morning they have mr young statement that he drove the car that morning i guess you could argue admittedly in his statement he said in his second statement he said i was driving the car to the hospital to check on my friend who had just been shot and he picked up a guy named paul and paul exited the vehicle and then returned with two people so yes yes so what is it let's assume for the moment that there was a valid claim which is his statement and that the  clothes claim which is not disputed of this and the effect if those two claims were found to be proper what would be left of the government evidence what you would have would there is a video in my recollection that was on youtube or something like that where somebody is doing like a rap or some type of song which is in there doing a call of all the people in the other than to find out what the theories are in the case right if theory is a understand it is the instructional which you've been talking about but then when you get to the pivot of the instructional  that also brings you to the question of if you just struck the jews statement one of the government myths is improper and one that you consider to be a random violation if you struck those two is it your argument that aside from instructional that there is no sufficient evidence left well it's certainly it's our position that there's not sufficient evidence to overcome a prejudice instructional error was unnecessary government whether that was a separate argument from the fact that the two violations you allege prejudicial and obviously the court can forgive the waiver but it's our position that if the court finds that the statements were improperly admitted the post arrest statements all counts should be reversed because the government never argued harmless error in their birth that's the first real not the real position is that if the court finds that the statements were improperly admitted that in and of itself is prejudicial as to all the counts we obviously think you can combine the prejudice with other claims but as to that claim itself the jury asked to hear his post arrest agents again the government heavily relied on his post arrest agents in closing arguments i think for all these reasons about welp the violation one i'm not talking about that the violation would be when they first arrested him and interrogated him ok they didn't it's authorization that he use soup these two or three people were up there they committed a murder and they thought he was over so they ran and jumped in the back of his car and they drove a couple of blocks led them off and  i mean that's that's just the story makes up well your honor certainly that was the government's position i can understand your honor skepticism but what would you call it where i would call  someone whose mother was illegally arrested in his worried that his mother might get in trouble and so he's trying to come up with something to make sure nothing comes back on his mother and so it could be a cock and bull story  but when you go out and someone's mother is arrested for no cause and brought down to the station and you're told a mr young your mama is sitting here you've got some serious shit thrown at you your momma's cars here neighbor holding her when they interrogated him yes and they seized her car as well without a warrant and in her own home without a warrant watch her get dressed made her come in they took her car and abro the football games i sell newspapers and they give me a pass worth ten cents to the women and watch the game and then i had to come out early so more paper it please the court good morning your honor my name is francis lewis i represent the united states and with me today is max jenkins he was trial counsel in this case i will start by answering some of the fact questions that came up most recently the murder took place at a car wash at the intersection of forty second street and central in los angeles california it was in known thirty eight street gang territory and it was handled as a joint task force between the los d detective tells the d a s and detective tor and the new division cracked on and i want to clarify another misconception with respect to the miranda warnings the defendant has not argued on appeal that he was not mirandized they want to be clear about that he made that point with the district court the district court found as a matter of fact that he did receive miranda warnings twenty minutes into his first statement after at most he had said that he had been at the scene of the initial murder and that he'd had his mother's car testified at the suppression hearing but he went into the room where the defendant was being held primarily to introduce himself asked some background questions and then his intention was to leave set up the recording device in his notebook come back and ask about the investigation but because defendant immediately started talking he then stopped him gave him his miranda warnings and when there was an appropriate break in the conversation that's when he stepped outside of the room that's when defendant was allowed to speak with his mother his mother told the defendant at that point that she was free to go and the mother then decided to stay at which point the interview continued this part is all reported the transcript is in the record and that's when he began making the statements but for what it's worth the government's position is that his day one statement frankly weren't that incriminating he denied being on central avenue during his first statement he denied being near the car wash and he denied knowing anything about the murder that took place it was his second statement on d so delicate area where he was talking about what happened then is stopped and gave rand the word that's not correct your honor at no point during the first day did the defendant ever acknowledge that he was on central but he was with the individuals who ultimately committed the shooting and detective tells the d a s who was found credible by the district judge in this case testified that as soon as the defendant started making any statements about the case not just biographical information that's when he mirandized him defendant began making statements about the case he stopped him and gave him his miranda warning with twenty to forty minutes into that twenty minutes and that was the stuff we do here i know that was the officers testimony that's not within the brief your honor of the officers testimony was that at eight forty had had been investigating this for over a week or so he had talked to a number of other witnesses they had narrowed in on him being this i said because the mother said only she and he used the car and it certainly wasn't the mother who was involved so even though they continued to hold her they brought him in and they knew what they were doing they should have given the miranda warnings at the outset i agree your honor they should have happened at the outset  step that you want to talk about a c and b story that he just intended to you know establish a reporter john and judge a child listen to a full day of suppression hearing testimony and found a type of tells about the assessment credible and again i want to be clear the defendant was not challenged but he got miranda and we reviewed that for clearer yes your honor the focus in this case however on appeal right now is whether or not the statements that he made in the second day were additionally need to be excluded because of a deliberate two step process which is just not supported by this record the evidence is that detective counsel just gave the miranda warnings which were found credible by the district judge respectfully there's not evidence the police were having a big problem and they north san fernando valley went to give and what to say miranda warnings so there was a place up in the had problems i would just add them one of those cards because i gave a copy to the defense lawyers and they the public defenders who right off you know a nice way help them solve the fair number of their of their criminal investigation because that's the way  exit falsified exhibit you would treat the government invests exhibit said there was once a warning given but it didn't say when they said that the offices did provide them with the right again doesn't started the interview with the focus of trying to establish a relationship or initial report with the defendant and the core of the interview would take place there after and that explains why he didn't come prepared initially to record the statement and record the right so i believe that portion of his testimony now that's not true he did know that he was a suspect and  know that the record can be a bit hard to follow because the audio files from the interview were played at the course not transcribed the miranda warnings were given before the recording was turned on and yes of course but that has these helps let us know the that there were two statements they made him repeat the same statements it's not my understanding based on defending young's testimony in the suppression hearing but he was simply asked to repeat the same statements after he was mirandized i have a look at that again and certainly on i'd like you to look at the jail recordings and the jail calls that came after i have read this statement in which he acknowledged to his mother on a call not in an interview with officers they showed me a picture of meat driving down central of your vehicle driving down central you can see your car she says is it my car yeah cause you can see the stickers on the back of the window the defendant has not challenge the admissibility of the jail call and jail right here down central doesn't i mean that is in place in the scene of the miranda you still have the jail call correct your honor and i would also just point out that it was our understanding that they were challenging the murder conviction on appeal count one the conspiracy charge he was also convicted of conspiracy for witness intimidation which rested entirely on the testimony of a playbill bishop's member c w sixteen who was not cooperating at the time and the jail over here calls with respect to that case that was not challenge that's why we did not build any one of the three items listed if you showed any one of the three if we are talking about not the rico count but the other count to four and five that all you have to show is one of the three as a pattern of whatever it is the pattern of how the gang carried out its function that you listed three charges witness intimidation attempted murder or murder conspiracy to murder that all three items listed no your honor that was count one the conspiracy charge listed the three items murder conspiracy to commit murder and witness intimidation and actually did not specify that the murder and conspiracy to commit murder necessarily related to  cornelio and there were numerous other cropping witnesses who testified about a number of other violent acts that the defendant either conspired to commit himself or conspired for the others to commit because if we were to reverse the conspiracy just reverse murder and conspiracy we'd have to reverse the whole count no you don't respect life with regard to count one the only challenge to the witness intimidation portion of that is the specific challenge to the rico jury instruction on conspiracy you either of his two gel statements or the two challenge confrontation qua statements which related only to the by car murder in this case and did not relate to the witness intimidation component which came through the testimony on december thirteenth of c w sixteen that the jail calls show the defendant trying to figure out who it snitched on him identifying people by name and that one of the people he identified by name in that over here was then beat up by someone else from the gang later on so i see that i'm out of time if there are more questions i'm happy to d have not have seen an opportunity to comment thank you the only issue i would comment on frankly is with respect to the confrontation clause violation the government did concede that that was fair but i do think that if you read the trial transcript from start to when that testimony came in the government had a stablished at that point beyond a reasonable doubt not just the defendant's own words in the statements to the police but through his own words to his mother to clause if you've already proved your case context your honor and i would be if mr jenkins would like to speak to i believe him my frustration with a lot of these trials is you've already got what you think you need and then you go and commit constitutional  because defendant had fought to introduce gather relf testimonial statements over government objection that this even came in in the first place and the defendant made a point that gabrielle had never identified the defendant and that the government had picked defendant out of a tap on the twenty second and so again we concede it should not have come in but the it was brought in for a legitimate purpose which was to discredit the cross examination that somehow they had no evidence about young up until they arrested him on september twenty second it was brought out to explain what the cross examination point was trying to establish you need to impeach that cross examination point that yes the government did have evidence on young going into their interview on september twenty second that's why it was brought out that the suppression hearing he had actually had his memory refresh on that point but probable cause for arrest relates to the totality of the circumstances all officers knowledge and again detective tells of yes was found credible on this point by the judge and respectfully i don't think there are facts to show he did testify and again he has acknowledged himself that he now as a matter of practice turns on that recording as soon as he walks out we're going to see and we agree that is best practice and we wish he had done so in this case not his but he was not law to do so he was required to mirandize this testimony which is not challenged on appeal is that he mirandized the witness as soon as he started making statements ok i just speaking to my lagers i need to  look at the indictment two separate counts figure out which era goes where and your honor that the final point i would just make is that even if you accept all the challenges on appeal count one would still survive and that does go to the count that or the comment that i believe are just made we didn't think that part the witness intimidation did not appear to be challenged on appeal which is why our didn't our brief didn't go into it and we do think that survived all the challenges that are being made in this case it was just  one course and we're going to an issue here after all of this was when they tried him in the state court and he was acquitted he was can acquitted in the state court about nine months before this trial took place but there were no jail time no no i'm asking in relation to these conversations we're having about the the miranda warning that after a lot occurred then there was a state trial there was a long gap your honor the the interview statements took place in the double jeopardy case that the defendant had race in his reply brief on that issue but the federal case was first and ivan was filed in two thousand and ten before the acquittal and the investigation was ongoing throughout that time and to be clear the defendant jury acquitted the cops and then they were tried under a civil rights act and was convicted that's not exactly what that civil rights act was meant for but this certainly is and it was  correct do you agree count one stance regardless of all these errors and that's what i was wanting to focus on first the government said that he only needed to prove one racketeering activity which they said was witness intimidation and that's just not true robbery jury rejected the robbery allegation the red allege witness intimidation they found that they're correct and then they read and then the alleged conspiracy to commit murder and murder it's our position that if those two drop out as we're saying then i'll count one they're just left with one racketeering activity which is witness intimidation but it could be one one of it could be one activity we can but it could be two witnesses miranda warning was given and how do we determine that ok i don't think there's any dispute that he said he was driving his mother's car that morning and that's the big thing they greta he said that that first it's either twenty to forty minutes we don't know because it wasn't recorded and none of the proper things we're gone he said i'm driving my mother's car that morning at that point the gig is up because they have him driving the car so now everything flows from that and that's the problem he waited till he confessed to driving the car that morning then the brandeis and because now we got him we got him in the car on the morning of the shooting and now i will mirandize him you know they hold back all the pictures in the surveillance and all these things they hold it back until he confesses to driving the car on the morning of the shooting and then boom now one round dies so there's no dispute and that's the critical fact is that he confesses to driving the vehicle and once they got that it's all downhill from there and that's why that midstream the government keeps on saying we don't contest the miranda warnings were given well i mean the district judge said they were given what we're contesting is that you and they don't suspend is that the interview for twenty to forty minutes before the mirandized him got him to give the key confession and then they can run from there and it was designed with his mother detained there without cause all this was designed that well why is not  that at least it would be subject to an inquiry in the hearing below as to whether the jail calls are tainted fruit of the miranda violation i mean i don't think this court probably make that determination in the first  violations if they were true what effect they have what who has the burden and what is it they have the burden to show beyond a reasonable doubt that the errors were harmless and one thing you didn't hear today they said oh we have we even though he was acquitted in state court and then we had this great case and then all we just put this statement in for context but then why did you then asked the detective his opinion as to what the a simple statement meant why did you have to get him to say oh it was a gang retaliation murder because they needed that evidence to show the motive that element of the bike or a sense because they had a weak weak weak whatever you want to say about the murder itself as to the motives they had nothing they had no direct evidence that this was ordered by the gang you need to go and do this that there was some that the  not even not even a member of the gang so they need to shore up that weakness in their case and that's why the introduced the illegal unconstitutional evidence and violation the confrontation clause and then that's why they did it second step in violated the evidence we ruled by having their expert testify that it was again mode and that's what we don't hear today so they had a reason for doing it and that's why they did thank you