here's number thirteen dash one four four one united states of america versus john or large enough not to exceed fifteen minutes or so mr kelleher for the vulnerable vulnerable demographic children living away from their parents in a foreign country it was this backdrop that caused miranda to be eviscerated and for a federal crime child abuse to be created this is the bad law spawned by this case is admittedly bad facts but we have not shied away from mr tovia misconduct the prosecution has scrupulously avoided the precedent the dangerous colloquy between tovia been detected boyd and it's brief second the prosecution of minutes of suppression testimony and instead uses victims after the fact trial testimony this there the prosecution ignores that detective poison never told tovia he was free to leave during the interrogation or that he would not record the conversation or would remarked consumer opening brief like ships passing in the night entire sections are disregarded as a prop prosecution limits our argument to simpson the jackson bus having seated totally halves other points of the prosecution a fact throws itself on the mercy of the court fifth the prosecution singular alliance and simpson bijection is flawed  argues boykins remark that you're still going to talk quote is permitted under simpson because it's true so in other words anytime a suspect is told for example the sentence of the of the crime is twenty years that would not violate miranda because it's true counter what what did your client say that you feel restricted your i would say everything your honor but put in specifically he did concede two to hitting i believe all all four of the children i know at least three of the children he said by name he struck at various points he also explained why far as the tax evasion and bringing the children over yes or i mean so for though if the children testified to what he stated  you would have no proof to counter dick that would well your honor the children did testify to the abuse and obviously that's that's damning testimony however you know as we stayed in our br conviction it's based even in part on involuntary confession violence due process and this confession was not simply a peripheral this was central to the prosecution's case  i recognize that the chilling testimony was was the main focus but detective boy been an inspector fickle and repeatedly during their trial testimony spoke about what what mr tovey have said to them and that he confessed so this this was certainly critical to the process prosecution's case all admitted they did have other evidence but but again coming from from the horse's mouth so to speak this was this was very damaging to mr like it to be if mr povey have it said you know i have i've called this attorney you know john smith that would certainly be clear it's admittedly it's not the most an end but it was request but on the second the second prong and the second element of that issue the case law says that if ambiguous request is made and an answer by law enforcement essentially dissuades the suspect from show that this was this waiver was not voluntary and that's the answer you're still going to talk to inspector fickling and that true i would say no your honor i mean he did he was there to talk even if he wants an attorney or is thinking about it he still is going to talk before this attorney is is brought to him or that arrangements made he still has to talk to inspector fickling and the fifth amendment applies to civil and point is completely disregarded by the prosecution we cited this case in our opening brief in the prosecution makes no mention of that  the other the additional point is this questioning did not occur over the phone did not occur at mr tobey of home this this is not a case and i've read a number of cases where the interrogation of the discussion takes place over the phone or at a suspects home and that's not considered a posse that's not considered interrogation and the irony is here they had this this gentleman's information they had talked to him on the phone they could arrange to have this meeting over the phone and in that regard prosecution's case would be much stronger but they deliberately word him to a government building to an unfamiliar yes but that was to pick up papers this this was all about the papers and again the prosecution hearing that he did not feel free to leave he was in a small room well that's part of the us it's a to it's a totality of circumstances and it's what a reasonable person would feel and very briefly he was brought in again for paperwork that he's brought into this government building brought into an area that's electronically monitored brought into even what detective boyle and says is a small room and the doors locked their doors closed there's three not feel free to leave additionally detect the boy been told again in this but i would live describes a botched miranda warning told mr tovia of that his cooperation would benefit him and  essentially was saying that if you talk we're going to try to help you out so in second it's the total picture gallery may use most of your time on the miranda issue and you address the whether this is forced labor or not yes your honor  like miranda there are serious implementation problems with the prosecution's position there is no decision applying section fifteen eighty nine to two a familiar arrangement or domestic arrangement and while the prosecution has is said wrong or as we've gone round and round that that this is not a family and these are not family members that's simply not the truth these are real relatives are related by blood and they may not have been a family but they were family or all of them related but three are related to mr tobin one is related to wholly by blood so they were all related to either mr toby orally i would you distinguish the situation where in the sense that these children were bought brought for a better education and they got it was so it's an underlying purpose that keeps something from being labor and yet what the limiting principle is what you're after they were in school or studying again the prosecution disregards it you're saying there's no forced labor rest all of them that's that's correct but trying to get at the theory for that has a certain appeal i'm trying to get at what kind of line we would draw that would allow  future oppressors of children to get out of the that that will force labor statute i agree one hundred and i know how well what would the limit be well i would say the women would be you know it's hard to say you can see if there was no family relation so everything else is the exact thing but they're not relatives i would say i would say we lose i would say my case would be more difficult but but there's i would concede that but the fact that i think that the the turning point or the the critical fact is that they were not doing work they were studying virtually twenty four hours a day and i'm not saying that that there's that's not strange that he's not  benefit of granting this type of concept should be required under the state you're in and without the guardianship or something that that yes i agree with it happens that's true or and that is because i believe because of the dubious immigration status of the parties they probably did not want to bring more attention to themselves but i agree that it would have been more helpful for me if there was guardianship but again these parents they were related to mr tovey of mr toby while the children were in michigan he went to africa and stayed with these children's parents for a month hoeing stayed with the children for seven months in africa so this is not a random for poor people randomly plucked from obscurity these were these were family members there's a tradition to help other family members and that's what this was was about and how does that how do you tie that to the words forced labor i would say that this is not this is not forced labor because forced labor if i can quote the committee reports it's the comeback of fifteen united it's called to combat severe forms of worker most of this went to situations just revolve involving frankly stupid rules and just you know that that's his dictatorial way of doing things good morning me please honorable court maleo work on behalf of the united states your honors the jury in this case was unanimously convinced that the testimony they heard established beyond a reasonable doubt that the defendant knowingly used beatings starvation psychological coercion to break the four victims in his household and compel hard labor from them the question before this court is whether that finding was so insupportable as to fall below the threshold under congress's powers in the thirteenth amendment to abolish all badges an instance of slavery of modern day slavery and what the statute is intended in it's very broad scope is to capture not only domestic work the statute specifically mentions child care nannies work that does does occur inside the home but it is nowhere in the statute does it preclude criminal liability for for parties that may have a family  such criminal liability if the link between either the use of force or coersion or or threats of force the link between that use of force and labor and then i thought i thought psychological of course and was push and it's not it is anything that doesn't have to have use of force you can just speak with a commanding voice and they don't know what'll happen to them that would be enough when i think that the psychological coersion on its own would be sufficient but the psychological coercion i would with that if it's sufficient than the than i'm wondering about and it doesn't matter whether you're a parent or not i'm wondering about someone who tells his children to take out the garbage and make the birds is that is the only protection against going to prison for some parent who does that just the discretion of the prosecutor no i know if you had that case we would throw it out if that case was strictly a parent requiring as you of course as you said well with force you know cycle you know i mean the kid doesn't know what's going to happen might lose his privileges might get spanked might not get the kharkiv might think that on who knows depending on the age of the child and so the child is is forced in the sense that you set a sufficient right correct your honor to do chores to do chores that are work that you could pay someone to do like make your birds do the dishes and carry out the garbage that's a federal crime that's what you're arguing right the intent of kind yes or no just instance you described i do not think would would fall under forced labor and i want to know why not because that type of of requirement between a parent or child to take up but you say that makes a difference whether it's statute does not make that distinction ok i think that what you're getting at is whether case we would still find a violation if it was a child relationship under the facts as the testimony to estab us because of that strong link between either force or an extreme climate of fear or the threat of force where that where the child feels that they have no choice as to test her to be wife and that just child abuse statute what state is not going to force that and you know this this statute was an act that against the backdrop of local crime to no one thought they were regulating parent child relationship i don't think that this statute would necessarily be precluded if the parent child relationship rose to the level at that congress contemplated of of the extreme use of force of psychological coercion that that rose to a certain level certainly it's not so with respect i thought the whole idea was it didn't have to be extreme force i think that it that it could be psychological coercion is that not right that is correct your honor but right then you say that you have to use this kind of force to coerce this kind of labor that's what the statute says right correct so to say we're talking about what kind of labor you're saying that's a great amount of force and i think that that's going to connect i think the degree contemplated by both force and by the psychological course and that would rise to the level contemplated by the statute is something more extreme certainly than than requiring the garbage be taken out or privileges to the what if they use extreme force to to require ordinary chores or work to use extreme force just to say to get up in the morning you have to get up in the morning make your bed and go and go to school and you have to make it and you have to make a sandwich for your lunch on your way and we're going to beat the heck out of you if you don't force labor by studying all these mandates that they study but even apart from that what about my sample you just you teach you you eight year old child will get up at six am we'll make your bed make a sandwich and go to school i mean that hardly can seem to be forced labor but you're saying that would become force labor if it was in forced with brutality is that right or wrong real bad brutality you know will beat the hell apartment part of me will beat the heck out of you if you don't do those three things is that forced labor if i mean are we talking about it either way if you're going to ask is it a family or not i'll say ok a hundred pm we be under no family i think the question would be closer certainly in your situation but that's not what we have here i mean that's that's not my question i'm trying to get the head of we rule for you headline new york times all children in america covered by the thirteenth amendment i mean that's the really big deal but if we were to take your argument to the next article step then all then forced labor or forced sex trafficking would be precluded where  husband traffics his wife through force brought a corporation or a cousin traffics his cousin so you guys are minor and into their own right i'm sorry so you have to draw the line somewhere else but i can tell you what i'm concerned about not sure about my colleagues i'm concerned about saying that all of the parents in america who who who responsibly discipline their children and make them do chores are engaged in a federal crime and the only thing that's protecting them from going to jail is the is the grace of the government not to charge them because it doesn't matter whether you're a parent and it doesn't matter how hard you're forcing them so you may be forcing them not very hard but you're forcing them to do labor and that's labor that you could have someone pay for and so although it's to minimum this is still a hurdle crime is that the government's position no your honor right well there i think that what is missing from your scenario are two things first here this is not a typical parent child relationship so the fact that they're rambling and the and the difference is that he's beating a very distant relationship you know two of the children had never met the defendant for the even moved to the states one had seen one a handful of times and what we're talking about is a distant cousin relationship and cousin i think in the tribal community in toto that from which these children came from is a much more looser concept two of them had never even met him before also this is not a even there was some sort of guardianship there is no evidence of a legal guardianship where some are you arguing this suggests that you think there should be an exception for family and then this then this case just becomes is it within or without my point is that the that the statute draws  line between the worst part of a u s supreme court cases that say you if congress is going to occupy a field that the states have regulated for a long time child abuse would be one of them you have to speak clearly and forced labor doesn't speak clearly to be in the relationship i'm not saying that this could not be a case where child abuse would lie what i'm saying is that there is the statute contemplates a closer look link like india massey  where the defendant was also a prosecutor the state level for child abuse and then was our surprise here by the fire federal sovereignty for involuntary servitude because of the level of coercion and force that was used and because there was no there was no reason why there was no parent child relationship certainly but not even any legal guardianship agnostic that example in this can't be too unusual in the united states just a just and the only reason i raise it is just to put all this whether you're a guardian aside let's say you're in a in a ghetto community or a poor distressed community and the parents are in jail or drugged out or absent and the neighbor or or the aunt who isn't really an aunt but is called an aunt takes these children and in my hypothetical and disciplines them says ok there's a new regime here you're going to go to bed at eight o'clock you're going to get up at eight o'clock you're going to make your bed you're going to take out the garbage and you're going to wash the dishes and you're going to go and you're going to go to school and i know i'm not your real aunt but i'm doing this now most people would say that's a that's a golden hearted movie script of a wonderful person but you seem to be saying that's a federal crime that's my problem i can't say well there really are i mean in my they're not related at all i don't think that that's the case necessarily where forced labor would lie because i want to know what the line because this seems distinguishable from that in one really key way and that is that it's brutal i think that of that is there any other distinction because the fact that it's brutal doesn't make it forced labor just means that it's and brutally and that's trial abuse what you the situation you're talking about contemplated tasks that need to be done in a household this is a case maybe it's a rich neighbor and she could afford a nanny home in a day or maybe you're requiring maybe you're requiring your privilege child to clean his room and and to take out the trash to instill those types of values that you're talking about what we're talking about here and what why this case was brought to our office and why this does lie within forced labor because the labor performed labor for compelled from these four youngsters went far beyond what was required to maintain the household and it exclusively on many occasions benefited defendant to characterize the evidence as as appellate counsel did that this was just studying with some some other house work on saturday is not an accurate characterization of the of the record many of the much of the labor that was forcing these children exclusively benefited the defendant they laundered his clothes they scrubbed his bathroom it with bleach they babysat his children they babysat the children of his girlfriend the seven children of his girlfriend  cleaned up and served and cooked for his guests now they weren't allowed to have guests they weren't allowed to leave the home or to call anyone but all this labor they left the home to go to school correct and they left the home on certain isolated occasions where they were with people that the defendant had in his life with whom he had to perpetuate this fake family like his girlfriend or their tutor now also the fact that they went to school was required essentially not only because that was the testimony show that the agreement was between its parent and between the parents of the children that they would be sent to school but if also these children were not in school it would raise suspicions because the of the community and the situation homework i think i think he was well the testimony was that this homework was really an implement to control them and to break them they were required to do it even when they got a's and even when it was they were not at that that point in the workbook now of course go to harvard and interview a bunch of people but they have a lot of parents that were one of the things but if but even if there i agree that this that that that that could have been a tool to better education but to to beat a child for writing the homework down in a book that's lined as opposed to unwind is simply a means of coercion to get them under your control and to break them and all the while benefiting from the labor that they did when they were not doing their homework they didn't read them in that case for labor because something wrong and wrecked but there's there's no the study doesn't contemplate a direct one for one in that of the housework that they did had to be had to be done while the defendant was holding the broomstick or the ice scraper that he used to beat them the fact that their that there was random indiscriminate violence or random beatings or tools that were meant to control them and not let them be outside and play like a normal parent would allow their child that create this incredible climate of fear and that's the distinction been normal children whose whose kids are legally correct you would think the parent who's whose kids were here illegally and might give away that they were here illegally might be told to stay indoors correct they would be as well as to not certainly they were i wouldn't be necessarily in order to force labor that would be in order to avoid deportation well i think it's part of a larger scheme that this that this defendant had in mind certainly they were not allowed to tell anyone where they came from when child protective services into marriage and most illegal immigrants told their children well i i would suppose so that not but certainly the person who is responsible for bringing them over here illegally has an interest in keeping that under wraps degree of force and coercion and the type and degree of household labor and labor outside of the home that that rose this case that that makes this case subject to a federal prosecution certainly if the facts were were different our office would not have brought this case these right but could have been brought up the banks were different i think other office that wasn't as i think that the statute is broadly written there's nothing so this is just that's why i'm saying this is just the grace of the prosecutors no i think that this statute in some time is that what the limit the limit is time and i'm still curious what the limit is are you saying that there are some things that aren't forced labor even though they are forced and their labor just has to do with how much it's related to the benefit to the  it's it's a degree of three thing it well yes it is a decree that there that there be not just the requirement of household chores because this went beyond that there not just be the requirement of some you know kind of light psychological these motivational meet the degree that isn't only when their support is that only when there's a formal  e they call a guardian appointed for these fine you're saying that there's some things are beyond a degree and some things are not beyond the degree some kinds of things you're about to describe would be ok even though in a sense they forced labor right i think that yes there would be in that category of things doesn't matter whether it's a formal guardian could it be the informal guardian like i'm talking about i think that the way this actually was written as well as the legislative history that goes that that supports why this why these six laws were enacted is that you the relationship between the two is not central it shouldn't be thank you one i mentioned before this idea of a clear guardianship or a point of trying to make it so it's a legal point that when the federal government congress enters a field that the states have regulated very heavily in the power still regulate very happily the congress has to speak clearly when it's deciding to enter that field don't you agree that applies here doesn't that i do agree or i believe that that means the local prone to this milieu relations issues they've got to speak clearly when they're trying to regulate that through a forced labor i believe that the power of congress to legislate in this area is because it deals with slavery and incidents and badges of slavery i think that there's a broader conception in what types of conduct they're able to allow because as we know states did condone slavery for many years and this is why we have in recognizing that there are modern forms of slavery that this statute was an act of previous owners were not importing third cousins the come work on the farm or no sometimes they were birthing them as in thomas jefferson's ancestors who were also slave or or children that worked on his plantation who were also his own children so i think that that in that statute that should not discretion the meaning of the statute not your discretion i think that it would contemplate certainly a situation where a parent could compel up to the standard  its child now that doesn't mean that it's that this is a case that is strictly child abuse where there is no there's there's not that link that nexus that is expressly contemplated by the second element of the statute the fact that there is child abuse incorporated in this in this federal crime though because they are precluded by other federal crimes like like child pornography production choppered i'm free which can occur very often unfortunately between a parent and a child and there's like in those statutes it's clear that what we're talking about is not just a federal case of child abuse and like here this is not this is certainly has has elements of child abuse because of the force and the beatings that were used but because the statu contemplates that that specific link that knowing compulsion of labor from a child or from another individual by one of the three means thank you thank you this is a child abuse but it should have been tried in the state court and i think the reason it was not was tried in this the federal system is simply because the state dropped the ball and that that is why at the outset we said this is this is the bad law and this is that's because this is not a federal case congress makes enough was without the need of creative application by by u s attorneys offices is our i think so but it was it was pretty bad and cases like ted some of the other cases clue and these are cases where the individual is literally working from them from the moment they get up to the moment they go to bed there's there's  incidence of sexual abuse these sorts of things so these are the types of cases that were meant to be brought in have been brought under fifteen eighty nine there's absolutely nothing i've scoured the case law is for cases similar t  they left the house they want to school every day they rode bikes his clothes they cleaned his clothes they also clean their clothes it was done the laundry another essential yes precisely so this is an instance where they were living in the basement or living in the garage or living in some hobble they were they were his occupation he had two jobs for her he worked as a janitor at the university of michigan and he was also a part time tennis instructor our time w none of these facts are like this they had they had a bike or multiple bikes they had a car he taught them how to drive this is just simply again is there child abuse here yes is it bad yes  but that's what it is it's child abuse it's not forced labor he also hired a tutor so these are these there's a myriad of examples where mr tobey have again he did it in a very bad way but he how did the jury come to their own conclusion they i don't think they had a choice frankly based based on the jury instructions labor was the find all services was the find there's literally nothing i don't have the language right in front of me but but i believe for services it was or labor was anything requiring any sort of mental exertion so literally you know asking someone to pick up a pencil that is that is a labor service any relationship involving domestic violence or child abuse along with chores is now a federal offense and i think this is judge sutton's questions have suggested this is an area of state law and we pointed this out repeatedly we said it in a number of cases that fame relations are traditional or of state concern and we would ask that the court reverse either on this issue or miranda or the other issues