that what he's trying to do i think it's beyond doubt that he is trying to get a response this statement on face invite to respond to david invite the response right then last chance to cooperate it actually contrasts i don't know that much about prior case that was being argued but it sounds like it may contrast with what was said there after this is all over so i think just looking at those words it's clear that some response is being invited and it's being invited right then the government's response seems to be well the agent wasn't trying to or didn't know he guessed something that was incriminating w honor i think that misunderstands the test that applies to what constitutes interrogation the best is whether the officer quote should have known unquote that his comments were quote reasonably incriminating response but whether it was reasonably likely to listen to criminal response and in the criminal response does not mean something that on its face inculpatory means anything the prosecution might choose to use against the defendant can be i think sort of made that point in the last case and if you apply that test to what happened and what was said here this qualifies and i think qualifies pretty easily first just look at the response the agent was affirmatively trying to get he was trying to get information that would clearly establish that our client knew another important government was going to use that evidence to help convict our client beyond that though your honor if you go to the reasonably likely standards that apply to here i think it is generally reasonably likely that something like that said to a young man like our client his last chance to cooperate before that what did he talk about what did he want it was referencing a prior interview i think about a month earlier at the state prison and this is an excerpt i believe on page four or maybe five before five it was referencing a prior conversation where it got into the prison saying to mr big deal we'd like to locate this as it gang member who's a fugitive named joe st this other gang member or just the name of the person i thirty first and suppose that or that will be incriminating to him that part of my argument is that first at the very likely that's at least someone incriminating and we at least in the sense of it that it's the kind of thing the government ended up using at trial and could use to try to show his connection with the gang because that was part of its big argument city knows where this person is means he's part of that gang i think the government could use it to argue that it could use it to support that argument and that even important gang member which of course was part and parcel of their argument about why mr we take responsibility for the guy and instead of mr but yes i mean state responsibility but i don't think the court really needs to reach the question that question because i would submit that when you go to a reasonably likely standard it is entirely possible believable and reasonably likely that especially a young man who's been badmouthing the police as the top agent declarations said he'd been doing in the first interview i respond either with some sort of give up statement like ok you got me out cooperate or more likely something like you responded to i'm not worried i've got a defense i have someone who's going to say whatever assuming this is a fairly close question and my turn on standard to review our cases are not particularly helpful as to what the standard of review will be for this determination by the district court what's your view i think you i think if you parse the cases out really do draw a line and they suggest an over review here with a case to seem to fit and this makes sense actually it's where the facts are undisputed and i would submit especially where there's not any live testimony where there's any demeanor to evaluate it then you the nova review i think the case is actually if you break them out pretty clearly draw that line and i think it makes sense if you have undisputed facts not even including a witness's demeanor to which you're applying the law there's really no reason why this court can't do it as well as a district court i think in and it important constitutional right which gives some more of a leaning towards an over if you don't agree with you why isn't any error harmless in this case beyond a reasonable doubt i think you'd almost have to say that there's no way a jury to believe a gang member against the police and i hate to come to that is all the only other thing they have besides these inconsistent statements which are actually unfortunately pretty damning you know necessarily say say this for me because it's a lie they could just as easily be say this for me because it's the truth i don't know the court the court may recall this the three letters that the government had that were sent by mr you know mr via you look at those letters it's  you know they could be tell this false story for me but they could also be tell the story for me so i think it really is pretty damning as to why you accept the police's words over the gang members words unless it's just a bias jurisdiction where the conviction took place i e california use whether this was a convict your argument here is not to disappear your court of the state of california didn't have jurisdiction but this particular department was wrong department to try and well actually i call it i would call jurisdiction in this california courts cases the culture is diction but i don't think you need to retake i think the even stronger point i'm arguing your honor is that plus you have important i think the juvenile versus adult distinction is more importance of superior court versus another court and i think that's right there is a california supreme court case here and that uses the word jurisdiction is that i and it did not court exercise exclusive and neutral jurisdiction over all use under eighteen years of age and until that court makes a certification order the superior court lacks jurisdiction to me now i don't think you additional sweeping line it said what constitutes a conviction shall be determined in accordance with the law of the jurisdiction in which the proceedings were held congress for better or worse decided it was going to stand le state laws determine what constitutes a conviction it wanted to give respect to state law at least in that respect here the state of california and california law says two things about this conviction first under implement the one hundred eighty six that's a very language in another respect it just does state law determine whether the conviction exists at that time and that's just another implementation of the stack three language that says what constitutes to convict and depends on the law of the jurisdiction in which the conviction was this thing so really this is just taking a list that says you look at the language as the i q and taking matters is whether the conviction existed at the time of the possession of fire not whether it could be vacated later because the list of course it hadn't even been vacated does not address the question of certainly thing lewis use perhaps getting out is that the rulings designed to affect behavior and it makes sense to say if you have any conviction hanging o you no matter what happens to it later you ought not to buy or possess firearms and doesn't your argument under attack then i mean it means that some people we now have additional statutory language tonight you have your man right you know maybe what congress decided and i probably didn't think to look congress we noticed i did was they didn't want the federal statute to be overriding thank you thank you there are five criteria that must be satisfied in order to qualify for and to judge at the trial level most of the views or discretion although she said it was necessary to make a finding on these she made it very clear she didn't believe on it isn't applicable in the circumstances the fact that the defendant knew he was a minor at the time he was convicted was somehow comes out of that and that he took no action to vacate the conviction at any point until after he had been the knowledge that the defendant had to act upon is his knowledge that he was a minor at the time he was convicted of a crime or at least he had it's time he had committed the crime of which he was convicted in spirit criminal very fundamental proposition which has not been changed between then and now and that is that the expungement vacation set aside whatever pardon whatever verb you intend to apply to the change in the individual's record by a state operates only prospectively and the reason for that the congress has decided that it is in the interest of the united states and its citizens that certain that particularly in a case where the individual wavers the right to appear by not disclosing the fact that there is juvenile in juvenile court and waste right in superior court by not disclosing to the judge that they're under a false name determine based upon the words used which are very few secondly the case law and you can start with the cross and if you accept the proposition that lewis was not modified the basic proposition is not order is entered to that you're on those you can possess it just like if you've got a temporary restraining order issued against you for domestic violence your wife is gone and hypothetically and lie about what you've done you had notice of i you'll interrogation should be a factual matter it is by its nature a factual determination was the individual in custody in this case that's obvious determinative it is very relevant to consideration of these issues that the question or that the statement of that the functional communication between the two was directed to something other than the crime for which the defendant said he was going to do after he had a chance to think about things he's picked up at a prison he says cost planet i didn't do it i don't need to cooperate then he's thinking about it he sees what's going on in federal court there's more of a tension in any wor and if you would have used that if that if it didn't help your case absolutely i mean we put it in because we believe a didn't violate miranda we believe that the system of our case and prove it helps to establish that the defendant was lie very quickly going to the expert issue that i the the judge first of all in the exit of records in the when the judge make has the discussions you very clearly ways and is a grounds for that ejection were he testified he was cross examined extensively by the defendant but there were no there was no other objection on the record beyond that i don't quite understand she she wa extrude based on largely and then i can't recall specifically but the issue was whether he was qualified to render it and whether it was admissible or whether the a liability problems the the quote then goes on for several paragraphs to outline why we think there's reliability problems with the sort of methodology of the type of testimony and the those then got ignored by the district co on the randi issue there's a couple little factual nuances that mr barker move past will but the agent did not say this is quote probably unquote your last chance to cooperate he said this is your last chance to  cooperate this wasn't i don't conversation with another officer like we had in in it and the theorem in case the defendant happened over here it wasn't just words normally attendant to arresting has to be used in an office or hasta today like telling that it's been and when he's been arrested for standard booking questions it wasn't just explaining the defendant situation to him so he could reflect on what to do what the word last chance were meant to do was get a response right there before he talked to an attorney and before he could reflect on whether how and why to keep his mouth shut and i think it was you know we can go back and forth frankly as i've argued with the agent expected in hope to get it wasn't just the out cooperate it was in the cooperation about knowing where joe louis it cetera was that i would submit is in itself someone incriminating the bottom line is doesn't matter if the government got a response and used the response to trial and understand it that's when incriminating is incriminating if the government uses it the government used it here and they used it in a very damning way frankly with respect to in case there's any any lack of clarity here we are not conceding that the evidence was not newly discovered the not prototype board as it is or that it was there was a lack of due due diligence to find it soon as it does if if there's no requirement due diligence to create evidence to the extent there's any doubt about that please consider what was involved here because mr pitt dmso did make efforts and i think efforts that he makes