merits i think i need to talk about the waiver claim to go for governments are doing that because this precise argument was not raised below this course and i entertain it now there is no wavering as to this issue and i cited in a twenty a j letter to the williams case which says claims are preserved not arguments and so the claim was presented below is preserved argument now is a little bit different but the claim itself is preserved can i ask you that that waiver issue doesn't concern me as much as the sense that you've abandoned preston you know due process and voluntariness argument hold together and instead have focused just on the moment of the miranda rights being waived did i read about that was under seventy i'm talking about if you're just focused on the whether the waiver of the miranda rights rights was valid all we are focusing on is everything that happened up until that point and then the moment when he signed the waiver nothing that occurs after that is relevant right second part so he has to prove obviously two things two to get relief for this claim number one that he was in custody number two that the advisable was was was knowing and proper the  the i think the easier question for the court is a custody issue as mr chalk came into the house he was immediately seized and detained and handcuffed or eight to ten armed federal agents full tactical gear all the stuff they always wear in those search warrants inside the house it was a police dominated atmosphere and there's no question about that and he was handcuffed not just for the initial seizure and securing of him but for twenty to thirty minutes that he was held and that's and that in handcuffs for twenty to thirty minutes up until the point where he was taken to the back bedroom isolated from the rest of the family and in the back bedroom the two agents cotman in a maro interrogated him door closed two agents in their arms and never told him he was free to leave and never told him that he was not under arrest until after the interview happened i think custody is established the closer question i think is is the advice will and the advice was troubling in a couple different ways first of all the two agents go out of their way before they ever get to the rice to try to make a scene like this is a foregone conclusion that to read your rights and then we're going to ask you some questions and when you're done you can ask us some questions so essentially telling mr john what was going to happen before it happened and so what the agent should have done is taken out the card read the miranda rights and asked if you wanted to speak instead of that they preface the whole miranda vital process with the state was to try to minimize the importance of what he was about to do it seems like your case iran for this argument those duty where it seems like the changes to the miranda warnings were much more extensive than what happened here so do we have any case it's closer to this where it's like minor changes or minor additions of words you write us a duty that those ages went off the rails and it was totally different than what happened here but judy does it stabl the rule that this is the second part of what we're all you can involve yourself in the waiver when they at when they read the rights to mr cha and then said twice do we agree that's that's explicitly involving himself in the waiver and again we're talking with a his miranda rights and number three that it wasn't mr cha decision on his own and so and so i think that when you combine what happened before the advisable and then you have the age involving himself in the advice and i think the combination of those creates a very coercive environment of comprehension and inability to comprehend what what was happening didn't find it necessarily what the expert for the defense found as far as that that extreme but definitely valid that there was a cognitive issue that was there and then deny the motive deny the motion coming in for a limited purpose and the lawyers assume they were coming in for a limited purpose and that's fine but the jury doesn't understand the rules of hearsay and the rules of confrontation with any instruction proffered to limit from the agents for the truth only for the context only for the effect on the here on the only for the effect on mr cha that that instruction was never given so when the jury went back to deliberate in this case they not only had the the videos they had the forensic evidence they had research on statements they also had essentially mr cha father as a witness against him even though he was never called a trial and so that's the problem with with with this the duction of the that's true but that they did include the jury the district court's instructions in that case which told the jury exactly what should have been told to the jury in this case again there was no objection i think it went to assume that it was not coming in for that purpose the jury didn't make  it's confrontation you can't have those statements coming in for their truth when there is damaging as they are in this case and that's that was a problem with the introduction of the interrogation even if read it was ok you know the action of the of the good morning your honor may please the court mark mccann for the united states there's four issues here and i'd like to actually start at the back and work my way forward because the fourth issue is the only issue that was clearly preserved at trial and that's the instruction that instruction has two paragraphs been presented to the district court and was not there's no record on it now courtney no fighting we're asking you to discuss the miranda waiver substantively not whether or not the issue was waived in court but whether the miranda tracks the written waiver expressly the cases talk about how the words are important but they just have to reasonably convey what happened and here i don't the government does not believe that merely saying do we agree instead of do you agree somehow puts the government into the position of of of having something to do with whether this waiver happens or not it's essentially  it seems that that sense of saying do we agree with this or do you agree with this it's unclear how that can change a valid waiver in this case in terms of whether the waiver was knowing voluntary an intelligent judge extensive findings of fact in this case i think it covers three pages of our briefs were more he looked at the defense intelligence he looked at his ability to understand questions he looked at all of those and those findings of fact are supported in the record and have to be accepted by this court unless clearly erroneous and it's our position the government's position that those facts are not clearly erroneous the waiver was valid in this case we reviewed to know though that whether the waiver was voluntary right you do yes yes your honor but you review findings of fact for clear air and where is there a finding of fact here that the waiver was voluntary that is at the very end of judge order he goes through the findings of fact one by one makes them and then says when you point to one that where he says the waiver was voluntary like as a factual matter or at all and if you can find i didn't see a statement where he specifically looked at that question and i don't your honor i don't think he specifically said the waiver was valid what was voluntary what he said what he said yes what he said was this confession this waiver was voluntary and had the three part test i think he was talking at that point i think this maybe gets the judge watkins of original question about whether what issues are still in play here there's the waiver and then there's the confession though i don't see him separately addressing the waiver which i think is an issue we reviewed a but you're trying to into a clearer view well your honor i think one of the reasons why there wasn't more of it is because this issue simply wasn't raised before judge issue which is gets us back to the whole waiver of the issue the focus ever always discussing then why isn't there a finding on voluntariness or ruling on voluntariness of the waiver your honor that there was a ruling of voluntariness at the end where the court after going through all the finding said i find  it would be in judge order and so you are thirty six thirty seven is probably the most relevant part  he states on page thirty seven that he's going to deny the motion to suppress he finds that he had the intellectual capacity and understanding to understand despite  any issues i just i have trouble understanding whether the judge is asking all the right questions here because it's kind of all mushed together so if we think there's a question about voluntary ness of the waiver and then a separate question about voluntary isn't the confession it seems more like he's talking the judge is talking about voluntariness of the confession and kind of skips over the first part and i think your honor that's because that was the focus of the argument that the defendant was making at the suppression hearing the judge was responding to the arguments that were being made which is that the defendant because of his language issues in his culture did not understand the questions that he was being asked was not responding appropriately that was the whole focus of the argument and that's why the judge focused on that in terms of his ruling because and that's why our first argument that there was a waiver this issue was important because the judge simply didn't address some of these arguments because they were in a problem identified by the defense to unclear how a discovery violation could ever be played there because the court simply if the parties do not bring it to its attention don't know what discovery was made what representations were made there's nothing in this record to indicate what the government did or didn't do in this case and so even if there was some error it later you are talking about the statements of the father in the recording no i'm talking about the third issue your honor the argument where they said that the  agent testified as an expert witness and therefore the court should have instructed and given a bifurcated testimony instruction and so you're saying that the judge didn't know whether there was an agreement between the parties that the agent could do that or what are you saying no i'm what i'm saying your honor is the argument that they've made is that that was plain error because the government did not give notice that they were going to use this witness is an expert the government's argument now is that this could not have been plain error because the court had no idea  unless the parties bring it to its attention what was or wasn't done in discovery and so i don't understand how that's relevant to the issue of whether an expert tell as a fact witness and an expert or was testifying as an expert when they weren't supposed to know what is the matter what they did in the ok because they've made two arguments your honor the first argument was the rule sixteen argument that there was a violation of discovery the second argument which is whether he was testifying as an expert your honor for first of all  the testimony where he was objecting that they have just objected to was he was asked in other cases he has seen some people delete it some people don't delete it it just some people don't have it at all sometimes the numbers are higher sometimes they are lower this was something that had already if it did not affect the trial because the defendant had admitted that he had previously deleted child pornography files and so essentially it was something that was not even in dispute and if it was expert witness by this witness it was invited by the defense because they are the first ones on cross examination who began asking this witness is questions like that they asked him specifically you know have you seen cases where people have lied to protect a family member so if that was expert opinion it was expert opinion that was first brought out by the defense and if there should have been an instruction that's where it should have been so to the extent it was an error not to give the instruction it was invited error by the defense because they are the ones that started going down this road and only came up on redirect in addition your honor does not affect any of the  here do not affect the outcome of the trial any of the players because here we had a oral confession we had a written confession and we had a confession that was corroborated in at least twelve different ways  do we agree is very different from do you agree especially for a gentleman with an i q in the high sixty's scared out of his wits in his bedroom with to our door closed behind him trying to get him to waive his rights and talk to them that there's a big difference between do you agree and do we agree what is the big difference the big difference is the agent making him part himself part of the process and the agent making it seem like again this is a foregone conclusion that this is how it's going to proceed i mean it's still a question right so if the person being asked doesn't agree the answer is the same whether it's do you agree or do we agree they would ask if you yourself didn't agree so it's only a question about whether you agree with it but it's a it's a ploy by the agent to to to involve the government involve the police in this activity and essentially make make it seem as if the decision is already partly made and he just has to make make it make a decision to confirm what the agents of have already decided and so again the duty versus right had different facts but the rule there is that an agent just needs to ask the guy do you agree to waive your rights and talk to us and when they start doing these things use these tactics in these tricks especially with someone like mr cha it violates miranda it's unfair and they should not be allowed to do that twenty eight has the portion of the  transcript where the judge confirms in the argument section and ruling that the defense was raising the issue concerning the miranda the miranda waiver so that was confirmed where the where the other