good morning your honor may please the court joanna schiavone on behalf of the appellant jazz winder saying i'd like to reserve two minutes for rebuttal argument i'll watch the clock in this case arriving from arising from federal agents detention and interrogation of mr saying there are three main issues first the district court's application of an erroneous standard and denying a motion to suppress statements obtained after a de facto arrest absent probable cause second the erroneous denial of the rule twenty nine motion for judgment of acquittal given the absence of evidence of mr singh's intention to control the firearm on august twenty the date of possession charge and third the erroneous denial of the rule thirty three new trial motion given the weight of the evidence against constructive possession and the equities weighing against the conviction so turning to the first issue the district court's oral order in this case made clear that the court was really struggling to task and factors the court stated that it did refer to brown versus illinois and mendenhall but the court never actually looked to florida versus royer which was cited in the moving paper papers by the defendant in in this case i'm sure is the court is familiar the facts here are very similar to florida v roy or and so applying the for the fourth amendment test under florida v royer and this court's precedent in other words washington v lambert and many other cases  the door was not enough so based simply on the information provided in the witnesses affidavit that's in the sealed excerpts of record and so when agent mccullough been approached and talked to my client behind the  compartment asking him about the gun they still didn't have credible specific factual information that he was an illegal alien in possession of a firearm there was not at that moment your honor probable cause to arrest and interestingly agent  cause it's not clear whether or whether from the police report as written by the agents that all of those record checks were completed either before the interrogation or subsequent to the interrogation the report was actually written after so this is not a case where we have a war application we can review as to what they knew going in so so it's not clear whether those record checks actually had been performed prior to engaging with with my client when he was in the store and so on the question of his immigration status then we're looking timing you need to present evidence that they were not done in time so in fact your honor a trial counsel did request the discovery and was provided the report the report that said excerpts of record one twenty one and one twenty two and and interestingly agent prado actually admitted that he did not think there was probable cause and that my client would have been free to leave until he made the incriminating admissions and so while that understand that what he thinks at that time doesn't weigh at all in this case is not just because he's not so it doesn't weigh at all in this case it's certainly a reasonable officer standard your honor and and i understand that but under this court precedent and the solace be woo in other cases it's at least a factor that the court can take into consideration in determining whether it was probable cause so it's certainly not dispositive but the agent having reviewed the affidavit submitted by iraq on the immigration point did not think that there was probable cause to arrest another factor i think is relevant for consideration on probable cause is that the eight agents spoke throughout the the throughout the incident they were on the phone with the u s attorney and they did not at that point  say let's stop we've got it let's get a warrant let's put together an application let's go to a magistrate judge it's called the duty judge nobody did that and i think again it's not dispositive but i think it's another indication that the agents didn't think they had probable cause at that time the government really didn't the government didn't present the officers what they did was they presented the report and then the witness statement and so that was the evidence that the that the district court considered in the district court said that or made a finding at least that that the court did not believe that there was probable cause on the immigration issue now the court didn't specify whether it thought that there was enough cause on that second element judge kozinski the possession part but the district court did not think there was sufficient probable cause with respect to the illegal alien status in finding there was no no probable cause what did they find out on that point once we talked so subsequent to scoring my client back to the in an interview room the small room i think we all have a picture in our mind of what this circumstance was i don't i don't have the picture ok sorry so i did this is is this the office is there any other room in this door private room it's it appears from the record that there are two offices sort of back in the back of the store and that he was led to one of them that is not the store owner's office but another small room it was described in the record is the size of a witness box in court where the witness box does not do we have any d they stood in front of the door they closed the door behind there was evidence that they stood for the reason that it was very cramped that the table yes your honor and they testified that yes they did it so they're telling why they're standing yes and so and so in fact the circumstances were that they patted down my client after scoring him without giving him a choice is courting him to the back room seating him across the table so he was seated they were standing it was hot they closed the door and they started interrogating him and it was subsequent to the words in custody were excluded from the miranda form so under the precedent judge's scanlan it's not necessary that that that that fact is actually also not dispositive even advising a defendant or a suspect that they're not under arrest doesn't actually affects the determination as to whether it is a de facto arrest so the fact that it was crossed out and that he agreed to the miranda advisement while it can be taken into consideration it's not  positive here and looking to all of the other is that there's not dispositive i would say in light of the really the all fours analysis with florida versus royer that is what should be dispositive in this case really controls the and under this court's president a precedent in pitino we also have a fact here that was not president and florida versus royer and in for tino the client was an alien she also did not speak english as a first language acknowledged that when those circumstances are present a defendant is even or a suspect is even more likely to submit to the show of authority and so your honor i would i would say that there's even more factual basis here or to consider under the totality that a reasonable person would not have thought they were free to leave now turning to the courts second analysis the officers also used more more force than was necessary under the circumstance this case is similar to washington v lambert in that there was no threat to their their safety they they same circumstance they escorted the defendant in that case from the public arena which is similar to this case and then sort of them to the defendant to a small an interview room just as in this case and whether it was for privacy or not doesn't arrest that a reasonable person under the circumstances of my client putting yourself in his shoes would not have thought that they were free only if they just require also made a clearly erroneous finding that i think is really important in this case the court said that he was advised he was free to leave the record actually never shows that he was advised he was free to leave it shows the contrary and the government has not disputed that point and so to the extent the district court relied on what is a critical fact and mean that clearly erroneous finding i like i see i'm out of time i'm happy to address questions on issues two and three or reserve for rebuttal if you would like on home go ok thank you morning my name is kim sanchez i'm the assistant u s attorney who handled the suppression motion the trial and the brief in this matter your honour's the government's position is that the trial court properly decided the suppression motion  properly found the facts regarding the basis for the suppression motion that the defendant was not in custody when the ages spoke with him and was not in custody and till the time when agents placed him in handcuffs the court found factually that the defendant was not in custody because you know we're talking about all of the compartment or a sweat house or whatever but the district judge had to sort that out what part of that sorting out were facts that the district judge made that led him to the conclusion that this was not  and the district court looked at the fact that this was a place of business where the defendant frequented had been there for approximately four years and so it was a familiar surroundings to the defendant that he was familiar with us office that he had access to the front area of the store the store the business was still operating while the officers spoke with the defendant in the back office that the two officers were in plain clothes they did not display any weapons that the officers took care to advise the defendant in writing and orally that he was not in custody and they had the form and crossed out on the form where there was an indication the miranda form where there was an indication that the defendant had been taken into custody and also the court found that the judge could not find any heard you're posing counsel say that there was no such statement ever made your eye but there is no quoted statement and you are free to leave i believe that the judge a statement was a reasonable inference from the fact that the officers had told the defendant he was not in custody therefore leading to the reasonable inference that the defendant was told he was free to leave during the time period that the officers came in and you said that there was other business going on in the store it wasn't clear to me in reading the briefs what the situation was they come in we know he was behind the cash register they know they asked about the guy and he made an effort for the guy and they stopped him and then they took him over but at that stage is there another person in the store other customers in the store what is the factual situation at that time before they took him to the office there are some point during that interaction the defendants brother in law did come into the store that the store was able to stay open and so there was somebody working the cash register while the interview was going on and on the recording as the court noted you can hear business in the background and it was obvious from the noises that could be heard from the office that there was still normal business operations going on in the so there's no on the recording yes on the recording the defendant is told he's free to leave the form is read to him or wait a minute wait a minute that's in dispute are you saying there he was told quote you are free to leave if his statement in the conclusion of facts was that the defendant was not in custody comma he was that he was free to leave i'm saying that that's a reasonable  inference from the statement to the defendant that you're not in custody she said he was told he's free to leave it's quite different to be free to leave as opposed to being told there's no there's nothing on the tape that supports finding that he was told us we believe there's nothing in the case that supports that that quote that those words were used judge civically said that the defendant was told there's a pa indicated by gosh is obviously he was not being in custody comma that he was free to leave so my position is that the judge made a reasonable inference from the fact that he was told he was not in custody i'm sorry if i said that i did not mean to say that i've always thought that that was a reasonable inference from the fact he was told that he was not in custody but we're going to check the tape you know for from the film video so you can go back and see what you actually see my recollection is that you said he was told he was free to leave this as well with where we went off now just to make it perfectly clear you are not are you now are you not taking the position that he was told he is free to leave i am not saying rd your honor i believe that judge issues conclusion is supported as a reasonable and i'm sure i asked you a question and you want to now answer different question i'm sorry i didn't you answer the question dash obviously he was not being in custody comma that he was free to leave and one interpretation of that statement is that the judge reasonably infer from the statement to the defendant that he was not in custody that he was to understand he was free to leave not that he was told no your honor that's not that that was free to leave and still support that he was not in custody the judge still did find that the defendant was not being in custody and that he was told that that this was a familiar has the reading of the rights from the rights form and the crossing out of the portion the agent specifically says that he's crossing out the portion that says anything to do with custody i don't specifically recall if the agent report says that he there were two agents and so one agent advised the defendant of his rights without the form and told him that he was not in custody i don't believe that portion was on the recording the portion that was on the recording that he was not in custody there was a record for the suppression hearing and there was a record made at the trial and at the moment i cannot really recall the exact source of that statement i know that the defendant was told amendment analysis rather than the fourth amendment royer totality analysis because the language of is a factual finding i think in this circumstance that the court was using it as his ultimate conclusion rather than using the terminology of defacto arrest because the court wasn't applying the de facto arrest analysis and so rather than it being a factual finding i think it was i read it as the court's ultimate legal conclusion that it was that it was not an arrest and you wrote you read always when i wrote opinions or gave disses and i didn't write out whether or not i'm taking this and maybe sometimes i wasn't too careful with them saying it's a conclusion or finding a fact but there was no objection made to it there was nothing that anybody said as i see the record no you're wrong you're misapplying this so why would we take it as a finding of the the defense counsel did urge the court to apply the tasks under the fourth amendment your honor and so i did i do think he reiterated those tests on multiple occasions and actually pointed out the citations in his brief to the relevant authority but the core indicated that it reviewed the brown amended men nhall authority and then stated at exercise record twelve that the court actually didn't see any authority on what would constitute an arrest or what the factors were that the court should analyze and i think we can deduce from that that the court was not looking to the florida versus royer analysis the court was looking instead to the brown versus illinois fifth amendment custody interrogation analysis and so while the court may have made the finding that it was not custodial i still think this court can look at the totality of the clearly erroneous clearly yes your honor that is the standard if it was a minor that say your analysis clearly shows that he made as to whether it was custodial and then on the point we've been discussing as to that he was advised he was free to leave i recording on appeal i requested that that be transcribed and that is in the excerpts of record at one twenty nine to one seventy nine you can review a transcription you also should have it at least in the record available to you in the just report the audio recording  i did in my brief outline some differences when you actually listened as we all know when you listen to it a situation occurring is different than seeing it in paper opposing counsel stated that that it was possible to hear business being transacted even though the door was closed and i would submit hosing counsel said the district judge said he heard and i would and i would submit that when listening to the audio recording in the way that i read the district court's decision is that listening to the audio transacted but you can only hear that when the doors opened egypt prado did leave the interview room temporarily he was speaking to the u s attorney on the phone and he talked to someone else in the store and if you're able to hear business being transact but not at the time that the door's closed when they say in the record i'm opening the door i'm closing the door yes your honor they actually say that yes it's in the it's in the transcription of the audio recording that's in the record at one twenty nine to one seventy nine ok you don't need to read it and he and he read in a time is way over and then the final issue is that i did want to clarify one one piece of testimony agent mccullough didn't actually say that he made or your honor at least i want to clarify what he said was he kind of reached for the gun and that is a direct quote of what but it was in the context of sort of pointing to it and sort of kind of indicating the officer being helpful in answering his question where the gun was and i just wanted to say that i that i think that that's not the same as being as making an effort or an intention to control the guns on that point i wanted to clarify the agent's testimony thank you thank you