good morning we have a day calendar today consisting of three cases to be argued followed by an argument in a pending motion the motion will be held until we've completed the day up off the street by the postal inspectors and brought to their federal inspection office and then after the interrogation without miranda he was brought to local authorities they didn't book him the local authorities i don't know exactly what happened by the local authorities but the federal inspectors when they were interrogating mr duran were not in the process of booking him they were just interrogating him and failed to give him miranda rights but did see there was a reference somewhere know where it is no but that there was a pending state prosecution against him at the time that was referenced i think in the report of the interview by the postal inspectors that's why they took him over across the street we don't know what that was or what happened the rest of that day whether he was actually brought in and booked on the state charges or even book earlier on some charges you know i believe that he was processed by the local authorities that day but i have there are no facts in the record process he wasn't booked i don't believe the record is quite clear on what happened in the local court but what is important when your honour's are looking at what happened during the questioning is what the federal inspectors were doing there's no indication here that the federal inspectors were asking mr drawn questions in relation to a totally different jurisdictions but i think i thought it was that i was thinking about the criminal complaint was filed in september in the federal election it says paragraph ten on or about june ninth two thousand and fifteen which was the date of the interview there and was arrested in connection with a criminal matter pending in the nassau county first district court when considering what the federal inspectors were doing they weren't doing any sort of standardized federal booking process and they weren't doing any state booking process either and that's different than all of the cases that i've found where this circuit or indeed any of the cases that either of us have cited rely on a routine booking exception to miranda and that that makes sense the cases that rely on that exception note that the interrogators the agents are going through a standard form they're asking questions just in the order of the form there's no indication that they're doing anything than filling out arrest probably would you agree that if he was being processed by the two inspectors at that time on june ninth these were appropriate questions including what your phone number and the phone didn't work would try another phone if they were really booking him in this particular information but i wouldn't agree if i would agree for a few reasons first even when somebody is going through a formalized booking process if the agents are actually asking questions for an investigative purpose that still is interrogation under miranda and that's clear from this court's decision and rose that i really believe all the decisions just because it's a booking process the agents can ask questions that they know in this particular case will listen incriminating answers or the moment when they tried the phone it didn't work and they said tell  number they were acting in an investigatory capacity not in information gathering that's correct your honor these agents knew through their investigation that phone numbers were crucial to their case and they knew that what mr dr in answer to that question could be crucial to their case and when looking at the facts of what happened here in this interrogation it has all the hallmarks of a regular interrogation they accuse him of lying they confront him when they don't believe his answers and they keep asking him questions until they get the answer that they that they are looking for we agree with you what we do is send it back for a suppression hearing you know your honor you can find on these facts where it's clear that no miranda was given and that if your honor agrees with agrees with me that it was interrogation custodial interrogation that his statement should be suppressed the case the conviction should be reversed and it should be sent back for further proceedings refusal to suppress that's correct your honor but how do we do that like just run assessed i mean we don't know and i saw the testimony of one of the inspectors a trial that he thought there were five or six phone numbers at the time and that the were set off alarms during the interview but what we do we don't even know it's an objective test we don't really know much about why how many phone numbers they had whether this was one of the phone numbers whether they actually filled out any forms at the post office that had pedigree information would never be relevant to whether it should be suppressed or not we do know the answers to those questions are on a just articulated this phone number was on the list and they were not filling out a form  have the information that they produced in relation to that interrogation is not a form so if your honour's find that miranda should have been given because either this wasn't booking or processing and there is no evidence that it was and or that they were asking questions that were investigative in nature then his statements must be suppressed no miranda was given but would have to get a pedigree form from the state court across the street the district attorney's  office the county sheriff's office county police office and they were just filling out the form wouldn't be handing it over to the county detectives or something like that would not be relevant to suppression it might be but that's pure speculation there's there's no evidence that happened here and we're not working with no information at all i think we have a lot of the information we know how the interrogation went because the agents testified at trial about what happened we know the forms that they filled out because they were attached to to me it wasn't it was in a report of interview form that they filled out with because it was attached to the defense attorney's motion to suppress the evidence here were not missing facts about about the processing and also the government had the opportunity already to introduce any facts they thought were relevant to the district court's determination about whether this was processing and they failed to do so they just say it's processing but point to no facts at all that indicate that mr duran was booked or processed the other thing that makes this case different than the cases that this court and others have found are under this exception is that the agents here should not have been surprised at all by the incriminating nature of mr  answers this is not a situation where an answer that seems innocuous is later found to be incriminating because they knew phone numbers were crucial and the other cases where the exception applies rely on this element of surprise for example one of them that the government relies on rodriguez the questions actually weren't incriminating intil the person later returned to the country using a fake name then his previous answer about his real name became incriminating that's not only a surprise but it just wasn't incriminating he would argue in the in the words i think the supreme court that this question was designed to elicit an incriminating response under the guise of asking a pedigree question is that your argument it's part of my argument your honor but also it's not pedigree because they're just not doing a routine processing here this was just interrogation and when when mr drummond is read his miranda rights he exercises rights immediately but you're asking that we were vers the decision not to suppress and then send it back to the district court for further proceedings consistent with the decision correct on it the government could decide to retry him or not the court can decide to to i don't know i suppose that's not your decision that's the court that's correct yeah well what what what what has been the result so where does of the   fully and the government decides to prosecute mr drowned because of course the slate will have been wiped clean right what jeopardy is he in at that point what i'm getting at is very simply this this crisis and we discuss this case with your client as to what what can happen if he has this spectacular victory before the court of appeals i always discuss well what is it that you want from that's willing to this let's go back to find out what it is you want from us you want us to reverse an end to judgment for him on this suppression on the suppression issue yes your honor and i don't know i'm talking about the judgment of conviction right reversed the judgment of conditions right so it's not just a question of reversing a terminations on with respect to a search you want his you want us ten to judgment for him and therefore he prevails all together well no he would still face possible trial well that's yes that's my point we're going we go back full circle he faces the possibility of retrial right general but without the statement why is that why is that good for him maybe you can give us a general explanation of why why a criminal defendant should be deeply desired to be was taken from this interrogation in the government's words cracked the case open so the statements we're talking about suppressing aren't some small ancillary thing they are the crux of the case against your view is that it's highly unlikely that the government would chances were originally right ok great thanks very much thank the postal inspectors on the date of the june ninth two thousand and fifteen arrest which is did they know or should they have known that the content of their questions was reasonably likely to produce an incriminating response was they try the first phone it doesn't work it seems to me they have changed their mode from gathering information to investigate or i don't believe it means they've changed their mode from a pedigree gathering exercise to an investigative exercise your honor however the counter did not start with the question about the phone number the encounter started with much more basic pedigree information and the officers on this record as both officers testify at trial had an increasing concern that the defendant was being misleading and candid about his pedigree information he was reticent to provide his social security number although he confirmed it when the officer said we think this is it is this it so you feel that the fact that he's read a sentence that things that we all agree or pedigree information gave the  investigate further his answers and under this court's holding in rosa versus mcrae your honor the officers have a duty to press upon responses that they believe are either false or on reliable in that case the circumstances presented were were somewhat similar the same officers who were responsible for the underlying investigation which in that case i believe was an assault where the officers conducting the booking interview so they had the knowledge in their heads of what the nature of the case was really all agree that this wasn't a booking this was an interview  leading to a booking no no your honor the government contends that it was for the ball the booking take place it happened immediately after this interview booked where or by whom he was booked in nassau county on state charges this was an investigation overseen by the postal inspection service the arrest was undertaken by officers of the postal inspection service and inspectors mckechnie and belfort had principal responsibility for the investigation once they've arrested him once he was arrested on state charges he was booked in nassau county that day and with this to george's were i i believe it was related to credit card fraud a grand larceny charge hundred under the new york penal law i do not know the big zach statute under which he was charged however that case was alternately i believe it was ultimately dismissed deference to the federal prosecution when he was booked across the street to do the pedigree for information you know i do not know the answer to that standing here today and he wasn't he wasn't arrested on the federal charges until september inspectors at the conclusion of the pedigree portion of this interview on june then are he asked to speak to here that's correct your honor he may assume that he might have given the telephone information if he was mirandized before that i think we i think this court could assume that any time a defendant is mirandized they will decline to provide additional information and this information was so crucial as opposing counsel said it broke the case wide open  would that it broke the case wide open yes your honor the association of this telephone number with the defendant absolutely did constitute a very important development for the strength of the government's case however that association was available to the government by alternative means the defendant was carrying the same wireless device the cellular telephone in his possession on that are you arguing eventual discovery that is one of our arguments your honor that make that argument below didn't you waive that argument we did not the argument was not made below in large part because it was not necessary as the district court granted it denied th if you knew that this was a case seeking suppression prudence might have argued for you do you eventually discovery below you can't make an argument for the first time to the court of appeal mean this this court has the authority to affirm a judgment on any decision or excuse me on any basis presented in the record and the search warrant on which the device in question was ultimately searched and this same telephone number was identified was part of the record but it was part of the discovery the government at trial introduced both the device and the limited result but if it were not for an over eager postal inspector you would have in the in the fullness of time gotten your search warrant and found information about that phone but he asked for the number in advance of miranda warnings given to this defendant he didn't you never made the argument about eventual discovery before the court that your honest correct the record does not contain that that argument before the district court however i the government does not believe the postal inspectors were overeager here the government believes the postal inspectors were within their authority under this court's decision in rows of human cry and similar decisions in which the officers are entitled to press an arrestee when the booking information provided to them appears to be unreliable in that case it was the defendant arrestee in that case it was his hair color the the officer said what is your real hair color and it ended up being a very important item of identification information that corroborated the statement of the witness the victim in that case this case is at least one dimensional moved from that in the fact that the officers did not ask is this specific number telephone number they did not ask from this list of six or seven or eight telephone numbers that are relevant to the various credit cards but they asked what is the number of the phone you caring and they knew if that if they if they needed it that they could get a search warrant for that phone because they had the phone in their own possession so what was the russe to get him to identify the phone that's the very purpose of miranda to keep defendants potential defendants from giving information that is harmful to themselves without being warned of the consequences the only reason it got to that point your honor is that the defendant provided a telephone number that was a non working number just after i understand that's when it turned investigative in my view there is no holding of this court and i'm not aware of the holding that requires the officers to be continuously on guard for when any question might conceivably start to trammel into potentially incriminating information the officers the inspectors in this case did not have a particular basis to believe that the device was assigned a number that would end up being so important anymore then the officers in rows had a basis to believe that the hair color would end up being so important or that in other cases such as hyams or it's got just that marital status or employment would end up being so crucial i would also add that identification an attribution of particular statements particular devices particular social media accounts in this day and age is a part of almost any criminal case and a holding that requires officers to refer from asking these types of questions in the bookin context as this was potentially creates an issue where officers are on able to ask any questions that might go towards identification or traditional pedigree questions that's what that's what the rules have been and it's only the district the one district court case that judge glass or sites which included telephones anyway is in no what is traditionally viewed as pedigree information that was an outlier case when he decided you know we have a decided  sweep of this court's precedent but if we look back at some of the factors at some of the questions that were deemed necessary as pedigree information either because of a net need to contact the defendant i need to identify associates of the defendant who might be able to vouch for them in a bail hearing i need to identify the defendant's ties to the community marital status employment address a cell phone is that we leased as relevant to those queries to those issues as those same queries work but it's a good question and that is what i think you knew you were going to get which is you said before the district were a couple times i think we need a hearing here and there was no hearing how do you feel about that i mean the the government was was i think clear on this record the government was prepared to hold a hearing on the said the court may need to  the question presented as to whether or not there should have been hearing is a little different from the standard of review a political to the suppression question in direct which is that would be at an over review here on the decision to hold suppression hearing it's up to this court's determination as to whether that was an abuse of discretion and while the government was certainly prepared to hold a hearing i don't believe there are sufficient facts in the record to conclude that it was an abuse of the district either there was no hearing held you were speaking about the record before and in response to judge poolers questions i want to just make sure i understand this the search warrant it's not a and where is the search one i believe the search warrant is appended if i may have just a moment i believe it it is in our appendix yes it's government's appendix was it it was filed it i believe on the docket in the same p d f so it it appears in the same it should appear in the same read brief right correct your honor read the read ok i have some questions through that why is it being done it goes to the question of inevitable discovery i guess this is all before the district court that the search warrant certainly was the defendant did not move to suppress that i would also add that during the course of inspector bell for its testimony the government introduced both the device itself as well as of a limited printout of the results of the examination of that device application it is it certainly at the defendant's admission of his telephone number is an important part of the case that i don't believe the government has any sort of that search warrant application affidavit in support of the search warrant it's it's certainly added to the quantum of probable cause in the application however it only appears in one paragraph and there are numerous references drawn from the bank records that identify that telephone number as appearing on multiple either applications for credit card accounts and other persons names or upon the call records of when the credit card company would receive a call inquiring about the account that number  the commonality of the appearance of that number across those multivariate accounts is something that stood out to the investigators and would have stood out to them in the absence of the defendant's admission that it was his telephone number all of that is a long way to say based on the search warrant we know what happened in this case because we have a search warrant and the results of that search warrant were introduced at trial the government might be taking a longer walk to get to that result but the government gets to the result that this telephone number is associated with this defendant inevitably now want to do address my earlier concern with mr glass house what  vacate the judgment the government would have to retry this case without the benefit of the defendant's admission of his telephone number i think it's important to note that the defense did not challenge below nor have they challenge here numerous other admissions that the defendant made during the course of that booking interview that the government used the trial particularly in summation to highlight his lack of candor and therefore his consciousness of guilt right so let's limit it to exactly what's before of this particular inquiry as to which his counsel objects in this appeal so that's the hypothetical she the glasshouse would prevails completely what's what's the prosecutorial stance at that point the government would have the option to retry the case with the exception of one count on which the jury acquitted i i if anticipate fully that the government would seek to retry that case and i'm confident that we would win that case notwithstanding that we're not we're not raising a harmless error argument here because the record fairly supports that the government view this is important evidence before the jury the quantum of evidence identifying the defendant by an eyewitness the defendant's appearance on multiple surveillance items of surveillance video at multiple places multiple dates right now we would certainly have enough evidence to go to trial cracked the case why don't i think again i i would i would contend there is some nuance in that it's the association of the telephone number with the defendant to crack the case wide open and certainly the defendant's admission in a pedigree interview after having made multiple uncandid statements but that was his telephone number got the government to that result much your view would be his exposure in those circumstances were he to be convicted in this putative hypothetical trial he would he would face the same counts with the one exception i highlighted i do not believe there would be i don't know if the sentencing guidelines have changed if they if they change to his benefit then he would have the benefit if they change to his detriment that would potentially present an ex post facto problem so long way of saying i don't i don't standing here now i'm not i'm not thinking of a detrimental change to his status other than perhaps to get credit convicted again very sentence for any time he served on this first conviction which i would imagine he would get credit for that time yes or how much you know many months of his visitor he was taken into custody at the taking of the verdict which i believe was june or to address some of the questions about inevitable discovery i think there are a number of ways that the crew can find this was an inevitable but one that hasn't been mentioned is that the only reason the government thought that this particular phone with this particular number the only reason they had that number to put in the search warrant and say this number is associated with all of this other stuff that we have probable cause about was mr durant's statement without that statement it's not even clear they would taken his phone that they would have probable cause to seek a search warrant to the phone because they did not know what number was on it so it's pure speculation to say they would have found this out anyway the other thing i'd like to address is the government's suggestion that this would somehow be a novel ruling from the court the court's ruling in our favor would follow very clear precedent that miranda is required before questions that are designed to elicit elicit interrogating response that's what we have here there's a narrow exception for booking and the government relies heavily on rosa but in rosa the officers were filling out an online booking sheet they were sitting in front of a computer ask and asking questions and entering in tests and then we found him the next day he had totally blind here and that's why they kind of pressed him on it because those were the same detectives that took the statement the day before from the victim we said that was colored hair because i believe it's the entire it's the interpreter who's asking the question who was not the agent that knew anything about the case it's the spanish interpreter it's my understanding i could be misremembering king officer who was doing one of the two detectives know i could be remembering that but in rose a it's a question on the standard form and he's going through that form and that's not what we have here there's no form there's there's no standard paperwork that's being filled out and telephone numbers are also not something that are part of the normal pedigree information is not because of cell phones people had telephone numbers before they had cell phones this isn't a novel thing it's not in the list of standard questions that well and he was being questioned as part of his booking and processing and the investigators in the case that no reason to think that the questioning of this particular person would elicit an incriminating response maybe thanks very very reserve decision will turn to the next case which is united states versus kevin parker six under guidelines section two k two point one based on two prior felony convictions for a controlled substance offense that errors repeated in the government's pimentel letter government sentencing letter and the probation report satisfy the second conviction i can't i can't make that concession your honor that that conviction was not vetted examined by the defense below in the defense counsel has to have an opportunity to investigate that conviction itself and to verify that it's accurate and i think most importantly experience when there is an adjustment in the guidelines based on prior convictions it's very important for defense counsel to examine that sentencing trail script do you admit that in the city of yonkers on or about july tenth one thousand nine hundred ninety a denim aid to the red brief with intent to cause physical injury to another person you did did cause such injury to a person by means of a dangerous instrument which seems to track one of the sets subsections of the assault new york assault statute that would qualify as a crime of violence if so my question is if this were before the district court it would seem to satisfy yes that is in the transcript it's an accurate rendition of the transcript and my point is that this is not a new development this is information that was available to the government could have been put in correctly you know in the record i don't know you know what a defense examination which show of this particular prior prior conviction you know that for example the judgment doesn't identify the particular subdivision i agree that that language is there in the plea three minutes but as i'd as i noted how could it help him i understand the question i think that defense attorney to adequately represent a client has to know the underlying facts of that particular conviction and be prepared to argue in mitigation that perhaps it's not a serious it might seem on its face and therefore the court should consider that in deciding whether to depart from the guidelines range and i think you know that this court has made made it clear that you know the rules that in the government does nothing more serious than have to deprive a defendant of his liberty of the rules have to be applied there's a rule of federal rule of appellate procedure that defines what is in the record this is not in the record  this court's case law as recently as this year in the top case makes it clear that only in extraordinary circumstances can yourself moment the record you know that there are errors here his probation report is wrong for one thing for better or for worse it's wrong and you know he's entitled to have a probation report in the system that's accurate and he's entitled to have the benefit of his of every argument that his defense attorney can think of this person got the top of the guideline sentence in the guidelines which on a plea on a guilty plea there's a reason for that and he's entitled to every argument that could be made in his defense in mitigation and he should have that opportunity on remand to dispute this if if need be and to raise any arguments on medication that he can raise  is part of the record as it were i understand the question and i will answer it but there's a rule and the rule says this is what's in the record this is not in the record and my point is i would say no you shouldn't take judicial notice of it because you have to give the defense the opportunity to respond to this you have to get a diff to give a defense lawyer an opportunity to examine the accuracy of this i am not you know in any way casting aspersions on the government's integrity here but the defense has a job to do and the job is to make sure that this is accurate and in addition to that to explore with the client whether there are any mitigating factors that can be raised to tell the court why this particular conviction may not honor and that that brings me to to the second point which is also on the topic of accuracy and that is the argument through three spec to the error in the probation report another error which again is following this defendant around throughout the system which is that there was no basis for a variance from the guidelines that's in the probation report the government pointed out in their sentencing letter and the defense responded by first talking to the probation officer determining that that was in fact an error and the probation officer said can't do anything about it at this point final probation report has been rendered you have to talk to the district court at which point defense counsel writes to the district court and says you know there's a substantial variance recommended here by probation hundred fifty six months there is you know the government correctly points out that there is no reason articulated in the probation report for that substantial variance please ask you know the probation officer ordered the probation officer to amend the report and give the reasons for that substantial variance it's recommended and the district court where on this for a moment if you just bear with me i'm trying to understand the record i have the pre sentence report before me yes and the pre sentence report contains this and the numeration of these various offenses including assault in the second degree at the age of twenty one this was right this is paragraph fifty s so that's before the court right the conviction is not the particular subdivision and the question is whether this qualifies as a crime of violence and that is very of the district court the district court should have ordered it the simplest thing in the world order the probation officer to remove that error from from the probation report which said there's no basis for a variance and follow the rule it's a statute it's rule thirty two d one d would says the p s r must identify the basis for departure this p s art is not that then it is entitle to have that departure reason for that departure identified why so that the district court can hear those reasons and two so the defense counsel has another argument in his favor this is a huge thing for a defense lawyer to say probation agrees with me that it departure is warranted here and here's why they think it's warranted and to have those reasons articulated is not sufficient for the district court to say recommended a sentence one hundred fifty six months right yes because there was this argument with the district court is why i want you to talk to the probation officer to see why he or she shaved went down so low to one fifty six because at the time of the p s r the range was much higher than the district court finally arrived because of that intent in murder remember that so if you look at page seventeen of the p s r the guideline range is much higher i thought so yes right so that was an even greater departure from what the guy at the range was to ninety two to three sixty five and it was kept i think it two hundred forty months because it's two one t right but i mean it's not that the probation officer wasn't indicating there should be a variance it's just that she didn't indicate why it should be a variance but she was really trying to give him a much lower sentence that would have required a higher that and she doesn't the government agrees that pointed out the defense jumped on that that error and asked for it to be corrected in a timely fashion and it was not and i would i would just point out that you know that this errors compounded by the fact that both the defense and the district court got the probation officers recommendation flipped around wrong defense argued in the court you know agreed with it that that the recommendation was ten years on count two when in fact it was three years  particular you know recommendation should have been explored the reasons word should be on the record the defendant is entitled to that you know to vote for the court to hear that that information the statute requires it and for the defend defense lawyer to effectively represent his client he needed to have that information and then my my final point just briefly that the district court also erred in failing to apply the section three five five three eight factors to his determination  not to grant the defense application that he run the sentence concurrently with any anticipated probation violation sentence and again that the district court did that on principle that it's an anticipated sentence i don't think it's appropriate to do that you know and that that clearly violates the application up to five point three which says when there's an anticipated sentence it's in the district courts question to run it concurrently you consecutively thank you very much  it please the court finds time for the united states the judgment of conviction should be affirmed because the district court did not commit plain error here and its calculation of the sentencing guidelines was seeking to overturn the judgment of the just the the sentencing your honor the there is no plain error here put simply because the defendant substantial rights were not affected because the outcome would have been the same in the absence of error that is the sentencing guidelines calculation for there's no question in your view the application on the plane standard no there's no question in our view  least he should have had the opportunity to challenge this assault to a conviction and looks like he actually got it and it's seems like it's a qualifying conviction for a crime of violence compar about here yes and so i you know i understand defense counsel's argument that they could have raised mitigating factors for maybe why this offense wasn't as bad as it actually was but that doesn't go to whether it's a qualifying often  that for some reason this you know this wasn't a the guidelines calculation wasn't correct here you know the defendants are raising a plain error argument and so we just want to point out why that's not the case and why also wasn't a mistake for defense counsel not to that in fact there was a criminal history report that was provided to the defense and did include that subsection so is the problem is if you run it now you probably shows up the right way but we don't know what it was run years  colicky the judge actually you know asking him how he pleads walk through what the elements were and list them that was before the district court no none of that was before the district court problem well your honor you know this is basically it's plain it's plain air or where is this so so in other words if we were to go back it would end up in the same result these documents would be put before the judge he would look at them and determine it's a crime of that from the court of appeals right i i'm not sure on the i think that sounds correct to me it's typically something that happens in the trial court but you know the reason these documents were in the record wasn't for  some you know they weren't withheld intentionally by the government says that this issue didn't come up that's why they weren't in the record and that's the purpose of the plain error standard if there are no further questions from the panel  the application of two k two point one you know that the government made a mistake here the government made a mistake and it sentencing literates pimentel letter the probation report compounds that are there was no reason for the defense and i did some cases where the three can wire among other things that previous counsel who are trying to with having been in effect of we should get notice that that claim is being made  to the collateral estoppel issue in terms of that identity i think this is if you look at what the district court ruled on the last page of its decision here the judge said here the commissioner disqualified roth because it found he was not able to perform the duties of the position that's true and he said in the article said the judge found this decision was supported by substantial evidence as such the factual issue of whether plaintiff was qualified to perform the essential functions of the job has been decided i agree and he is precluded from related getting that but the issue here is the a b a claim is more complex we have we have the with reasonable commendation inquiry and that's the part of the task that was never late again and it certainly wasn't decided b determine essential functions of a police officer position with or without accommodation so that was at least raised before the state court judge in the article seventy eight proceeding right there was arranged but again i think that i think that raising in that in that manner of the article seventy judge really just connor you know regurgitating what the parties argued in there in their memorandum a law i don't think that's enough to show actually that it was actually decided in the prior proceeding was in the responsibility though of the candidate to if he was relying on the essential function and reasonable combination aspect of it to do more than to bring it before the attention of the state court judge say we're really focused on here is reasonable accommodation i don't know if it was a responsibility but again i don't think that goes to the issue of the identity on the collateral estoppel argument to me it's like this this is this is what i would say let's let's say in this case let's say rauf brought the same case article seventy eight he said something like hey if the county had said for example you didn't get the job it had nothing to do with your disability you didn't get the jobs you didn't score high enough on it and roth himself said no i didn't get the job because i was i had diabetes and the oracle seventy eight case made the same decision and said it was a rational decision supported by substantial evidence the county that i think would be seventy eight case and the reason why it shows it is because the record doesn't even identify which of the essential functions of the police officer job the county said mr roth couldn't perform and that really is job and that e o c intake form two and he said you know this he said is there anything did you ask your employer for any changes or systems to your job because of your disability and he answered an  is wouldn't that be a reasonable accommodation statement that yeah i think it is a we are with a reasonable comedy statement but again i don't think that that could be a different reason maybe to say hey you should've raised this maybe the county could argue if it was a different procedural posture that somehow they should be excused from having felt all for it but again your honor i don't think that goes to this issue on collateral sob let me put this what here's what makes the claim different if this was a race discrimination case instead of the disability committees i probably would have no wargaming but the fact that i'm with you know a b a is a more complicated statute it squarely presents the concept of because it's not the same thing as to say well we didn't give you the job because you're white or we didn't give you the job because you're a male or female you know the problem with a da is the county is entitled essentially to say hey we were not going to give you the job you know because you have diabetes but then that under the federal statute it says but you have to offer with reasonable accommodation to enable the person to be able to do the job and that's what makes this kind of discrimination claim a lot different in other words even if the county and i said this in my brief even if mr roth cannot perform the essential functions of the police officer job whatever functions they are the county could still be liable under the a b a by failing to have offered a reasonable accommodation and it's really on that discrete basis that i think that the judge erred in applying collateral estoppel he over he almost apply collateral stoppel he was correct on the last page of  decision with regard to what was precluded that factual part but i think the judge erred by then saying and then the whole aviate claim goes out the door it doesn't because he could still win mr roth says hey maybe i couldn't perform the running or the climbing or whatever it is the county says but you didn't offer me with the reasonable combination that the federal statute requires you offer me if the court has any further questions i'll be happy to answer them thanks very much thank you for your it please the court my name is catherine smith santos and i represent the feminine apple ie the county of nassau the narrow issue presented here on appeal is whether appellant raaf can relive again in federal nassau county that's correct and the state court rejected ross disability discrimination claims in finding that the county's decision to disqualify raaf was based on substantial evidence that he was accepted into the n y p d he was accepted i believe in january of two thousand and fifteen began training he didn't actually go on patrol until june of two thousand and fifteen which was approximately one month before the county rendered its decision disqualifying him we do not know from the record what medical documents were presented to the n y p d there is evidence from ross personal physician dr herson that roth asked him to pull certain medical records and not give them to the n y p d because they show that his diabetes was worsening so the n y p d we don't know what medical they had in front of them still in new york city policeman today i believe that in two thousand and seventeen which is again after the county rendered its decision in two thousand and seventeen i believe he switched to the university of connecticut university of connecticut police force is still working as an active policeman i don't know where he is that at the present that would be a question for his counsel  h has conceded as you heard here today that the state court determination that he could not perform the essential functions of an entry level police officer job is subject to collateral stop he attempts to make a distinction without any valid difference when he argues that he can relate a gate the issue of whether he could not perform the essential functions of the entry level police officer job with or without accommodation this is exactly the determination that was already made in the state court the article seventy a proceeding in your view for we address the question of essential formations of the job with or without reasonable accommodation yes it did it was a standard that was applied from the beginning it's the standard in the governing regulations that the county doctors followed in examining raf it was the standard in the eighty f a a the standard in the state court equivalent which is a new york state human rights law and the standard that was advocated over and over again in the briefing to the state court both by a bra off and by the county that the essential element of the of the disability discrimination claim was whether he could perform the essential functions of the police officer job either with or without accommodation and the district court correctly determined that the issue of disability discrimination was necessarily decided in the prior state court action the law does not require that the text of the prior court opinion explicitly address an issue in order for it to be precluded as was held by this circuit in due trover cis new york street gaming commission which was cited in our briefs the standard for disability discrimination under both federal and state law is well known it clearly includes the concept of accommodation and in order to find in favor of the county and reject central disability discrimination claim in the article seventy eight proceeding necessarily decided that roth could not perform the essential functions of the police officer job with or without accommodation the state court applied in its opinion new york state's civil service law section fifty which also incorporates the definition of disability under the new york state human rights law in paragraph ten of section fifty it refers to executive law section two ninety two which is the codification of the new york state human rights law and that definition of disability under the state law does include the concept of with or without accommodation these seem issues were raised in the state court and in a federal court and the federal court properly found that these issues raised litigated and lost in the article seventy proceeding were identical to those he attempted to reliving eight in federal court district court further properly found that the identical facts underlay both the federal and state court proceedings the state court did examine evidence presented by the county that essential functions of the entry level police officer job include locating pursuing and arresting suspected criminals and rescuing individuals and accidents emergencies and disasters that's in the state court opinion appendix page eight twelve these essential functions are based on regulations found in nine and y c are six thousand point nine and they were as your honor pointed out earlier relied on by dr rosenberg in rendering his decision with respect to ross medical qualifications after examining wroth dr rosenthal warned that the severity and uncontrolled nature of his condition combined with the stresses of these essential job functions would make wroth a danger to himself and the public in the state court proceeding the county therefore produced persuasive evidence that rock could not perform the essential functions of the job either with or without accommodation it was ross full and fair opportunity to contest that evidence to submit  evidence proving his own case and any failure that of him to do so should not be laid at the county's door therefore the district court properly found that the identical facts both the federal and state court proceedings so in closing the county's main concern in this case is public safety it does not want to run the risk that an armed police officer perhaps while in pursuit of a criminal suspect could go into hypoglycemic shock losing consciousness and losing control of a dangerous situation and therefore we request that this court affirm the order of the as was found by the fifth circuit and actions versus salazar and the seventh circuit and darnell vs therma fiber producing evidence that the severity and uncontrolled nature idea of a diabetic condition prevents a job applicant from performing the essential functions of the job with or without accommodation is enough to defeat a disability discrimination claim in other words no accommodation is is possible to cure or correct an applicant's own failure to manage his health condition and the multiple seizures that were apparent on the record here are the four caesars that he there's not a real lot of discussion about it that's for sure but how do you how do you explain that because nobody really thought there could be a reasonable combination for those functions as you know that's correct the county produced evidence that no accommodation was possible to correct rost own mismanagement of his health condition and under the fifth circuit and seven circuit cases that i mentioned the failure to control cases which did look at applicants with uncontrolled diabetes that's enough to defeat an eighty eight claim there is no accommodation it's possible under those circumstances look at this record this with reasonable compensation inquiry it just wasn't litigated and it wasn't decide about a court look look at the appendix a fourteen page ten of the article seventy eight decision i mean the judge and i said this in my brief the judge  administrative law and essentially all the judge says is the county had a you know a non arbitrary basis a rational basis to say oh mr roth couldn't do that a financial functions of the job it has nothing to do with the with reasonable combination in court and i think your honor to answer your question before you said well how come the with reasonable accommodation inquired and come up like if you look at the appendix on page eight thirty one disses the actual verified look for example like page paragraph forty six of forty seven it seemed to me what i read his position petition essentially was saying i'm not disqualified at all i mean the fact that i have diabetes doesn't render me on federal unable to do any part of the job that's just ridiculous so granted the article seventy eight court said hey the county had enough evidence to say no we believe you can't do it and i'm not contesting that he can put the can contest that again but that doesn't answer the question on the da which is even if they had as a basis to say that did they fail to offer reasonable comedy shows and on that score that's why the collateral estoppel ruling is bad it's almost like the judge he said there was no ra holiday so there was no opportunity for me to come to the courthouse yesterday to seek to be admitted in addition to which yesterday was essentially my day to prepare for to come here and argue this case which has been going on for seven i even reading all the papers associated with this appeal was a little bit of a challenge however with mr overlanders assistance i think i was able to come up to speed to what i need to know fine then  which we have to take special caution good morning i am rick bellus appearing on behalf of the united states i am in a usa in the northern district of new york of right today i'm appearing as a special assistant u s attorney for the eastern district the district court we would ask that the court set a briefing schedule for the underlying arguments that mr o'brien or appears to raise an expedited briefing schedule that would be fantastic your honor that's so there are certain affect  motion is pending can be granted absent the objection and we can expedite the appeal pursuant to an order that they would issue from a correction office after today's hearing that would be great honor that makes any discussion substantially in terms of what it requests i think knew that before this right while the question would then become your honor this is a case has been going on for seven years this particular scene subpoenaed this motion is about relates to a subpoena that the grand jury that it was issued for had any expired mr phineas may all be very important but you've won your motion usually the instruction i usually have to adopt that rule you're on is you were in a more should you head for the door i usually adopt the the rule that when you win or when the judge is doing your work for you you should sit down and be quiet i just raise right that you can go back before judge hall of the sinister to new york or any other appropriate district court and you will be heard in the form this of time but this particular motion is there anything left to this motion that requires expedited briefing i would say yes you are right we will do we will give you all the process that is due you can be assured of that and we will enter an order very soon to give you an expedited briefing schedule on the merits appeal thank you very much