morning again joining me this morning on the palace judge of floyd in rushing i welcome you all to the four circuit we have two cases for hearing this morning and we'll begin with seventeen and ninety six united states versus twice i hope i'm pronouncing that correctly and not miss the deal you'll correct me and we're pleased to hear from you ms deal whenever you're read defendant's suppression claim the st quoted in their brief they state the st question is whether the two step interrogation technique was used in a calculated way to undermine the miranda warnings and the district court found as a matter of fact that it was not and then they contend the defendant did not challenge this in fact we did challenge that and before i explain why i would  note that we believe d that the district court's finding was a conclusion of law and not a finding of fact but more importantly we did challenge that the defendant's opening brief states that mashburn the brief states that mashburn states the justice kennedy believe that the admissibility of post warning statement should continue to be governed by the principles of else that unless the deliberate two step strategy ploy in which case curative measures must be taken and i would note that justice kennedy uses deliberate and calculated interchangeably in his opinion and we've then in our in our opening brief say in this case the use of a two step process was clearly deliberate we we certainly we challenge that and in the reply brief we state in this case in the th initial interrogation sessions render warnings were consciously and deliberately not given and indeed they were deliberate and not given and agent connelly explained why in his testimony he testified that this deliberate to step strategy predicated upon violating miranda during an extended interview post warning statements that are related to the substance of the pre warning statements must be excluded absent specific curative steps must be excluded and so the great puzzle in this case is why as we see that the government did not take any of the curative steps that justice kennedy  must take specific there's no leeway in terms of the options available with respect to steps or is it lock stock and barrel you have to follow a certain number of steps and if so which ones are the well the three steps to change in time or place or informing the defendant that his prior statements can't be used those are except a bull steps i'm not saying that there is nothing else could be used but certainly the smart thing to do is to use one of the steps that justice kennedy lays out for you but i'm not contending that under no circumstances could anything else be used so where do you say where do you say the interrogation took place down the hall from the st interrogation we contend there was no meaningful break in time that the break in time between the st and nd set of interrogations were almost the same as between two of the interrogations in the st session and mr christ was not told that his statements in the in the  couldn't be used in court so the three steps that down to five by justice kennedy were not taken and we don't think that any cysts efficient alternative was used either but there was a mr mr bill there was a within the st set that was almost the same and we also suggested and i think it's true that you know there were there was interrogation going on by the kurds at the same time without the agents present  and and and so and we think one of those interrogations took place during that interim period but the but the main point is that there was not a significant meaningful difference between the breaks with within the  of the silly when he was there that make any difference you know that signal to him hey this is something different i mean that's i think what justice kennedy is getting at this was down the hall there was no difference b know what if anything he had said i don't know if he had talked and and if he had talked what he said that seems to me maybe even a a bigger difference than a different room or a different building and and he was he was being asked the same questions that he had been asked before and was giving the same answers he'd given at the end so to him it looked like a century or a repetition of the same  states they did not have any communication while he was in iraq to my knowledge was he wasn't at the point in time when he was given the nd set of when he was given the st and only set of miranda warnings his focus was on returning to the united states and not having to serve an extended sentence in iraq in an iraqi or kurdish prison he had to experience the conditions in those facilities sweeping on a concrete floor with only a blanket no having to pee into a bottle being far removed from his family knowing he had far fewer rights in that system with the result he actually cried during some of the initial interrogation sessions because of the fear he might not be going back to the united states unless and this agent connelly had told him that you have to give us the information so that a criminal complaint can be filed against you otherwise you won't be going back to the united states so the idea that mr quite slim is making a free and rational choice in answering the nd set of questions is really is is is not realistic for several reasons one is the cat was already out of the bag and he knew we couldn't retract what he stated already stated and he was obsessed about returning to the united states he was oblivious to his future rights in the american legal system compared to his fervent desire to get to the american legal system and from one task getting asked a question about that so sure do we look at the suspects the particular circumstances is that it is a subjective tests or is it simply whatever reasonable individual would perceive in light of what the this clean te a kurdish prison with all the conditions there and with a desire to get back to the united states how would that kind of a person perceive his situation and how would that affect his being an extension of the st round as opposed to something new and i would submit that under all the facts and circumstances of this case not only did mr quiesce perceive it that way but that's what a reasonable person would would have perceived can i ask i'm sure back up to the st part of this analysis and that is you and i don't blame you for this you're indicating to us that we should apply this deliberate and purposeful lens to the to what was going on here but of course there's other analysis whether or not the agent agent connally was engaged in a legitimate objective of gathering intelligence and i think that's where the district court hung its hat on some like you talk about that was the fact that this was a separate intelligence gathering operations sort of answer the question here and and suggested that there was no violation as a result about there was actually no reason they couldn't have given the curative steps were not attributing an evil intent to agent connally but we are attributing to him a violation of and this these were not you know that you've got like the coppers case in the nd circuit where you they talk about rookie mistakes and inadvertent this was this was intentional this was not burdened and agent connelly said in his test he recognized that they were jeopardizing the admissibility of this yet they didn't follow the dictates of siebert which since agent connally he was consulting with the general counsel of the f b i in washington that's in the record he was consulting it that that that sort of supports our person perspective on this that it was one continuous process for at least from the point of view of someone in mr quizes position and then and to contrast this with what happened a month later when he's on the plane back to the united states and there are a small number of statements are made there we have a break in time of more than a month we have he's in an airplane not in an iraqi over your time if you have a final concluding statement otherwise you have was some time for rebuttal sure i would just say that in this case the requirements of the secret have simply not been met and defendant quiesce calls upon the court to reverse the denial of the motion to suppress and remand the case to the district court for a new trial and on the other issues i'll rely on my brief thank you mr beale mr young good morning your hono the court women march th teen the defendant surrendered to peshmerga soldiers in iraq the f b i realize that an american had gotten from his home in virginia to isis controlled territory without anyone from united states detecting his move that raised several urgent national security questions to that person get recruited in the united states who facilitated his travel to turkey to syria and were there other americans in that exact same factual backdrop led to the decisions that give rise to this appeal the f b i made the decision to conduct intelligence gathering interviews without melinda warnings followed by law enforcement interviews with people on the district court main point we open with in our brief which is we don't think this is a case that implicates the need for curative measures at all for three reasons st we think the objective evidence supports the conclusion that there was no deliberate attempt to undermine miranda nd we think the subjective evidence supports that conclusion and rd we think on these facts the defendant's argument to the contrary is fairly good so let me start with the objective evidence and i'll begin where my friend on the other side began with this court's decision and mash and let me be very clear about what is new and not new under the circuits dr margaret is entirely correct when he says that mashburn is a case involving what could be characterized as a good state and there are lots of circuit court cases like  best discussion we've seen of this is the nd circuit's decision and more because they're the nd circuit said if you were to apply the factors from the plurality opinion in c vote it would go to whether the miranda warnings were affected those same factors bear on whether there was a plot to undermine miranda at all because of course if the government is going to all the trouble to create all of the separation between the round one interviews and the round two interviews that supports the conclusion that there was never an attempt to try to undermine miranda in the st votes my friend a moment ago says he is pleased that there was no people who think that's more or less dispositive in a case called reinert which is the  to ask you about i'm sorry to hear it so whether or not there was evil intent or improper motive one of the things that troubles me about this case is the the e mails from the from agent connally that all but that suggests that in addition to gathering intelligence he is and in fact sort of preparing were prepping quietus serving him on a platter for lack of a better phrase for the what was to follow it seems to be that he was operating agent connally was operating under two purposes one the legitimate the cloak legitimate both for the st legitimate intelligence gathering operation but secondly and he did not reflect an intent to a criminal contempt and i'd like to make two points about that that i think go directly to my friend's argument here's the st if the record showed that there was no legitimate intelligence gathering purpose and that the th th th interview were just more courcelles that he was just being asked the same questions again and again to know him then i think it would be a fair inference that something improper was happening i have to be honest with you i've been lying i've not been giving you the full story so this is not a case where he's being sort of run through the ringer in order to soften him up for step two his story is changing every step of the way and we think that matters  desire to soften him up work on the confession respectfully we disagree at j a four hundred and sixty four into connally testified that the reason the truthfulness is so critical in these national security interviews is that this information is shared with american back to the point you made earlier about the number of interviews so it's your position that those interviews warrant repetitive in some way or there was the i'm sure there was some repetition right involved in the questioning but are you saying that at every step some new information was being guarded and that's why the interviews continued yes and i agree with you on a completely there how to open some overlap but but if you call it was walk through each of these and if the court reviews the suppression hearing transcript he is asking is there a new information here is this still valuable intelligence and he says yes all the way through a back up leave his testimony is that he thought there would have been more new intelligence information that could have been gathered but a decision was made to stop around  again if the record shows that he was just being run through the wringer again and again to know in a totally different case but we just don't think that that's what this record shows and i want to ask you about us are can ask about the sort of the deploy touched on this same same same facility no change in facility that was obviously a change in the interrogators in a number of different things that that they told them about what their purpose was but relaying all of this was why i says overriding concern to get the heck out of iraq as soon as he could he was as it was i think europe friend put it at one point he was crying he was terrified he just wanted to get back to the united states and just  connelly sort of the record seems to suggest sort of fed into that by suggesting to him that the easiest path to getting back to the united states was to cooperate so what are we to do about that i have two answers here on the st is with respect to wanting to get out of iraq i think the district court judge got this exactly right by citing the supreme court's decision in colorado against miranda is not implicated absent st action so anything that the defendant brings to the table does not in and of itself show coercion there has to be something more so as the district court concluded we think correctly this defendant chose to go to turkey and in syria this enforcement interviews tell the defendant we do not know anything you said in the prior sessions and even if you spoke previously you have absolutely no obligation to speak to us that solves the it's all the f b i if they had then  intelligence interview and a law enforcement interview trying to get a confession in the differences he said that in a law enforcement interview you have the elements of the federal crime and all you're trying to do is get the defendant to say that he personally committed each one of those elements and so this goes back to you know a different case yet the records show that in addition to saying what he said agent connelly have for example told this defendant oh and by the way here are the elements of a material support charge just so you can be thinking about it for the next month different case because there might be an argument there that what was happening was pressure to get the defendant to fifteen statements into the box that would create a viable special but of course that didn't happen in all a said was whether or not this defendant was going to return to american custody depended on the assessment of others about whether i had been committed which wasn't really true and mashburn says it all the agents are saying it's something that's true and right i want to talk for a few moments about sort of the shape of the doctrine here we cite any number of cases in the brief jackson which is a st circuit decision thomason it's circuit decision and more which i've discussed a moment ago about how if there is a bonafide a alternative opus that is not to soften up the defendant for the nd round interviews justice kennedy's concurrence and super just isn't implicated at all both jackson and more war about guns but police were trying to find guns from crimes and they asked questions of a potential target about where the guns and both of those courts said that's not an attempt to undermine miranda and then thomas was a murder case where it became clear that what was happening is the defendant was trying to tell police that he had committed this awful crime but because police didn't know what had happened they asked more questions to try to establish probable cause and what the it's circuit said there is probable cause it's not undermining miranda and so district court's factual finding fifty as i take your point about the electronic communications but of course i'm clear air review of what has to be left with a firm conviction that a mistake has been given how much he testified and how much he was subject to cross examination entirely reasonable explanations for what was happened we do not think that  changing topics completely but i had a factual question about the curative measures was there any evidence at the hearing or in the record about whether there was another facility that class could have been transported to i know your argument is there were there were many curative measures including you know a different room in the same building and i was curious because i've never been to the area whether there isn't was another secure building that he could have been taken to or if there's no evidence on the record about that either way here's what i would say on how to interpret him a little bit i think it's fair  of course there was a claim in the district court that the kurdish forces in the americans had an improper relationship the just report rejected that claim and it's not here but the reason i start with that point is there was a lot of factual testimony at the suppression hearing that think that's what kind of i wondered about was that he was in kurdish custody and it wasn't clear to see me from them the facts on the record whether he could have been moved but and that's one suggestion that justice kennedy has made another suggestion is telling that that defendant that what they previously said can't be used in court and you may have mentioned this in your brief but it think that's been criticised as maybe not entirely accurate with that have been in your opinion what that have been an accurate statement for of the f b i to make here  petain because of course we make a harmless error argument on the view that all of the electronic evidence comes in your respective of the statements because the supreme court has been very clear that as long as the statements were voluntary there's no fruits doctrine problem and of course  it's a color or martinez wouldn't have been in a position to testify about that and the rd doctrines implicated as tucker which is about finding witnesses based on suppressed statements and the evidence showed that this defendant reached out on social media to twitter handles islam is peace suggested something then that several different respects might not actually be true and so our view on this your honor is in some ways what we have an easier job today if the statement had been made the st round statements probably can't be used against you possibly but it would have created enormous litigation risk for the trial to him about misleading this defendant in exactly the way the justice o'connor his five s why did you raise see a public safety  the police are trying to recover a gun that was ditched during a violent crime the nd circuit says obviously there are public safety implications to recovering a firearm that are not the same thing as undermining the verandah we think that's right but of course that bears on the if there are no further questions from the court op then i would end where we in the brief this case raised process and compelling national security concerns and the government submission to this panel is beale you've got some rebuttal time yes just i just have a couple of brief comments the st is that there was this observation that the district judge said that it didn't constitute a cross examination on the other hand i think it's pretty clear it did constitute a rehearsal the rehearsal was not the only reason that the questioning was done but when they sent the e mails back to washington saying that he's ready for the clean team that's essentially an acknowledgement that there's been a rehearsal in involved here even if that's not the only thing that was going on and the nd thing is that in terms of  the mr quite quite talking to connally about a criminal prosecution connally repeatedly told him that it's not our decision that's a decision made centrally in washington but the information on which that decision is based is information that kate that went through agent connally so he was  basically what ing mr quites know that mr quest need to cooperate with him to get back home because he was the one that was sending the information on to washington that the decision would be based on as to whether a complaint was filed in mr quest could come back so in terms of the larger picture our position is simply that this is a situation where the government knowingly did not that requires that the confession be suppressed and we asked the court to rule the the confession was improper we admitted and to remand the case to the district court for a new trial mrs young spent a good bit of time explaining why that was a risky proposition you know obviously we have the statement from justice kennedy in his opinion but what is your response to that it seems to make some sense to me that it's hard to predict admissibility and they'd be walking a tightrope at best trying to figure out whether or not these statements could be used for some purpose well my response to that is that the st well that's one of the curative measure that this provided for but  secondly that they when they intentionally did not give the miranda warnings agent connally not only was in the position to but did consult with multiple lawyers in the justice department and the they could have and they simply didn't do that so they that was an opportunity they should have taken advantage of once they decided not to give miranda rights to to take the steps that are required of them and they chose not t out of out of curiosity what and this is maybe unfair to ask you to craft on the fly i think it might be hard to do but what with that instruction say needed to do is to craft an exception so they weren't saying something that would cause a problem for them later i don't see that that's an interim out a bill sort of drafting of the statement problem i mean that's that's what lawyers do i can't do it on the fly here but they have plenty of resources and could read what we have done and what's the what's the aside from that statement with the other curative measures that they should have taken but didn't write that that they if they had taken them you would say no problem here well they could of have a greater break in time he didn't leave iraq for for considerable additional period of time they had problems getting visas for the pilots for the plane left and so on so they could have created a long a longer break a longer break them between the the kurds were going to prosecute and sell am i remembering that that's right there was a concern about that but nevertheless there was still a very substantial delay in fact happened and the kurds continued than within the st what it would have been feasible and as far as a different facility they didn't they they didn't even try as far as i know the records for certainly doesn't doesn't suggest and  i think there's a reasonable chance that not they were three interrogation sessions by the clean team and i think it's not unreasonable to think at least they could have asked to have one or two of those do the important work that we do without lawyers such as yourself being willing to take on these cases and as you did here today very ably representing your her client so on behalf of the court and my colleagues thank you very much for undertaking that that assignment you're very welcome we would we would typically come down after the argument and shake your hands obviously we can't do that except perhaps  virtually but understand and know that we very much appreciate your work before the court and thank you for allowing this to for providing such able assistance in helping to subdue our work here today so  stay well be safe and the court will stand in a short recess and until we prepare our next case thank you very much to go to the court will take a brief rece