in welcome to the th circuit sitting in atlanta this week a grant and i are so pleased to have with us judge ashley royal from the mill district of georgia a very well respected judge and he has a busy docket at home so we're very grateful that he's willing to come down and help us out this week we have familiarize ourselves with your cases so we urge you to go right to the heart of your argument and talk about your most important points you will not waive anything in your brief by not mentioning it in oral argument here today you're probably familiar with our lading system but in case you're not the yellow light will come on when you have two minutes left in your lot of time the appellant that's of course two minutes left in the time that you have not read reserved for  after the nd case a day will be taking a fifteen minute break so that we can reconstitute the panel let's begin with the case of united states versus joe p morning morning that prior judge grant judge world my name is bruce that i was not mr pegg's trial counsel i represented his wife delores peg who was acquitted of all three counts in the indictment their daughter laura's d d p was likewise acquitted himself and he sought someone on the outside to cooperate on his behalf to get credit for that the issue is as to the st two counts whether sufficient evidence to satisfy what mr pegg was charged with the two charges in happened in this case as far as the sufficiency evidence is concern is that essentially the government filed and charged mr page with the wrong obstruction statute that they could have and they did charge him in count one with conspiracy to defraud the united states world thirty five dollars is allowed to be filed where the court maintains jurisdiction this is a nest and something where the court loses jurisdiction and the government can apply to reassert the jurisdiction based upon a rule thirty five after that time proceeding that will be had in front of the district court in fact the district court might not even consider the issue of whether there was any payment that was made to a rd party either party or to a rd party for the case  the objections asked or the issues on appeal really in two thousand and one relate to the dynamics of the state that was given in the federal prison and whether or not miranda rights should have been given under the circumstances obviously a person who's incarcerated is not began with the interview relating to his quote cooperation with the government by the time we got to the part where we are submitting miranda rights should have been given he was clearly a target of a criminal investigation and found a case in which there was a under the circumstances of what was happening with this counsel at the time and just having a body there who is a lawyer is not sufficient to satisfy the miranda requirements certainly he needs to know that anything he could be saying could and would be used against him and the mere fact that there was an attorney that was present during the course of the interview and we suggested in our brief there are other factors relating to this authority which would mitigate her role as a as an advisor and she was in fact more of an advocate for him to get his resolution of his case with the world thirty five dollars as opposed to protecting him against potential criminal violations which really what was happening at the time of that interview the rule thirty five dollars was really off the table at that point if you look at  facts of the case this was a criminal investigation concerning whether there was obstruction of justice of struction of these u s attorney's office policy concerning payment of monies to rule thirty five coop cooperate or there is no clear showing or no clear evidence that that is something that would be considered by the sentencing court in the term whether to reduce the sense or not it could play a part in the underlying criminal case where the person cooperated because it's something that might be relevant to the motivation for the person to cooperate as far as the defendant that's and that's been charged with whatever activities that cooperate or lead to the arrest and indictment however for the person for the defendant themselves the world thirty five dollars is not contingent upon whether there was payment or not to the to the cooperate or now certainly a court might make that inquiry but similar to the other cases which i then evaluate the on members clause of the obstruction of the structure in statute there is no clear nexus or connection between what the alleged payment to that rd party cooperate are and the judicial proceeding and that's what's needs to be required for one thousand five hundred and three as well as conspiracy to violate fift arrest that shoot they found there was not a sufficient nexus or connection between the two so under those circumstances we would respectfully submit that judgment acquittal should have been granted as to count one and account to now that's charged those do not require the judicial proceeding to be pending or realistically to have to be formed or to occur but in fact those weren't charged and what could the court can only consider today is what was charged insufficient you have an evidence as to what was actually charged in addition to that the other points that we have to which we think are significant are the late the lane of what was a fact a policy within the middle district of florida u s attorney's office of actually the trial court refused to give an instruction specifically said that and the question is whether the other instructions in compas that and the problem that we would submit to the court was is because of the government constantly that to the to the jury in fact even arguing that in closing argument it was incumbent upon the judge to clarify that one in fact was in front of the jury was not a violation of the law relating to those payments all was as a arguably a violation of policy of the u s attorney's office and certainly that is something that was not if you look at all of the instructions the elements of the crime don't go anywhere near what that instruction would entailed but here the conduct was that the payment was made and he lied about it well the payment was may actually that's not what charge that payment was paid and it with the fact the payment was paid was made was concealed and that yeah we're not being  not simply that that that conduct was illegal making the payment well the lying about it buying about something which is a violation of a policy ok is not a crime concerning the crime of obstruction ok it might be the  lying a one thousand and one dollars violation but not the underlying crime there and think the it there part in the issue is whether or not payment of money a rd party cooperate is in fact a crime or not and that's what the jury was misled it was based on what occurred to go ahead and just want to ask you a question before you sit down about your motion you made a motion asking that the opinion be unpublished and i understand the reason for that but given that unpublished opinions are still available online and on lexus and less law is that really the relief that you want it under the circumstances of the prison it's the best available relief however since that time mr pegg has been placed under house arrest is in a halfway house based upon the st act because of his age and the amount of time that he's already served yes pleased to clark holly car show on behalf of the united states there is a direct nexus between peg's obstructive conduct and the judicial course the whole point of peg scheme was to cause the united states to file rule thirty five dollars motion in order to persuade the judge to reduce his sentence in his criminal case there couldn't be a more direct connection between his actions his actions weren't just the paying of rd party operation it was the paying of rd party cooperation in order to deceive the united states and filing a motion that it wouldn't have otherwise so there is absolutely sufficient evidence to give is i did you a question you did not abuse this discussion declining to give these not illegal instructions because as just roy pointed out they were covered by the jury instructions that were given and also they would have been confusing to the jury because as just pry point out the crime was not just the paying of their party cooperation the crime was paying for rd party cooperation concealing those payments from the united states lying about those payments  states in order to induce it to file the full thirty five dollars motion so an instruction that it's not illegal to pay for rd party cooperation seeks to excise one dollar part of the crime and say this isn't a crime so then  stand up and say look this case is just about their party cooperation and you've heard the judge say that that's not a crime but that was not the case and that would have confused the jury this is just an argument that could have made to the argued a usa perry testified that there's it's not a crime to violate the u s attorney's policy and then he pointed to the jury instructions and he said you didn't hear an instruction that it's a crime to pay for rd party cooperation if that if the jury if there had been a crime if that were the law that the khurana would have read that instruction to you and again and that was also not the case that the united states was presenting the united states  the prosecutor's closing the to the extent that any of the prosecution statements may have misstated the law and the misstatement was rendered harmless by the fact that the district court correctly instructed the jury on the elements of the crime and twice during the trial told the jury the district court is the sole source of the law and finally the district court does that necessarily hold up where the twenty two dollars sides appear to be arguing different points about whether it's corrupt intent and it wouldn't it which requires dishonesty and so the court that the jury had is the jury was following its instructions it had to find more than just paying for rd party cooperation  to find this dishonest element the ceiling from the united from the united states and in addition it was again not the case of the united states presented the case that the i c c presented from opening statement  rebuttal closing and it's not this case is not about violating the u s attorney's policy this case is about a fraud and a cover up based on the way that the case was presented based on the instructions that were given to the jury there's not a substantial likelihood that these isolated statements caused peg to have an unfair trial which is the standard for a mistrial now had he requested turn of instruction we'd be in a different procedure all posture but that's not what he asked for he asked for a mistrial and under the standard for mistrial the district court did not abuse its discretion by declining client agronomists i want to make sure i also understand your argument about when the judicial proceeding issue started is it meant that as long as someone is sentenced and they're carrying out their sentence there is in a sense a judicial proceeding or do they have to make some sort of does someone have to make some sort of move toward say or rule thirty five mission the judicial proceeding remains pending w there's a sentence being served because there's always the possibility of filing a rule thirty five dollars motion or other motions such as a motion of the st step back and there has to be a proceeding in which those motions can be filed and so based on that in the evidence that was presented to the jury which was that he was still serving his sentence and that he had the availability to file rule thirty five for the government to follow rule thirty five motion the case remained the jury could have found that the case remain pending at least for those purposes that's a pretty broad argument though what it could it could apply to things other than a potential motion in court what are the what are the bounds of that argument that anytime someone serving a sentence a judicial proceeding is relationship in time logic or causation to the judicial proceedings so not everything that a defendant could do all serving his sentence would qualify as obstruction or one thousand five hundred and three but where is here the defendant is doing something and is directly relating to the judges do administration of justice in a criminal case that he is still serving a sentence for still had an outstanding fine there were just then it is a pending judicial proceedings for those purpose purposes and that's consistent with fernandez which said that this case the criminal case remain pending because there's ability to file will thirty five dollars motion and the fact that it whether it's the one year rule thirty five dollars motion or the rule thirty five motion that can be filed by the government at any time the point is it's a rule is a motion under the federal rules of criminal procedure there has to be a criminal case in which to file that motion the motion the case has to be pending at least for those purposes so i'm not saying that the criminal cases pending so broadly that anything had pegged bribe the guards to get extra time to use the phone that clearly wouldn't have the direct nexus to and the due administr justice what if someone what if someone didn't pay their file on time with that qualify under the statute demeaned without make the case that would that be a sufficient nexus to a criminal proceeding if they attempted to obstruct the collection of the fine no if they just didn't pay it on time they just didn't pay it on time well again it would depend on what they were doing if they were acting corruptly if they were deceiving the judge or issue and under the housing market it's clear that peg was not in custody and therefore miranda warnings were not required this was a completely consensual voluntary interview between pegan the u s attorney's office had consented to this meeting because he wanted to get a rule thirty five motion and he knew if he didn't have this meeting there was no chance he was going to get one and during the actual meeting he was represented by counsel he was not intimidated he was not threatened there was no rough language it was a cordial interview he was allowed to leave to get a drink the well at the end of the transcript repeatedly warned peggy that providing false statements was a crime referred to consequences that might occur to his family and friends suggesting that the cooperators might turn on him why why does that mean to me that seems like the interview became much more coercive at the end after they took the break it might it certainly upped the ante but suggesting to somebody that they are suspect doesn't mean that they're not free to leave because which is the standard for  standard is would a reasonable person objective innocent person in peg's position feel free to leave and i think at that point when they got come for a little bit confrontational that's the point at which some of them say ok i you know this is this is taking a turn i don't like i want to leave and there's nothing about this interview that suggests that he wouldn't have been able to do so if he wanted to and in fact after muldrow made those statements these that will let you talk to your attorney leave the room they left the room peg asked for them to come back and once he came back he without having been asked a further question so again lied and said i you know i would i would rather serve my jail time and get a new one trouble i definitely didn't pay for any rd party cooperation is there any case saying that if an attorney is present that means that you don't have to give a miranda warning i'm not aware of that he said i don't think that would be the standard because again the standard is not were they represented by counsel is would a reasonable person in that position feel free to leave and definitely having a lawyer present makes it more likely that you that a defendant would feel like if they said you know what i don't want to talk anymore i want to go that they've got a lawyer who's a buffer between them and the law enforcement officers and now they're argue well she was conflicted but peg didn't know that she was conflicted so how could it affect how an objective person would view this situation and certainly the united states didn't have any idea about her alleged conflicts with the idea that miranda warnings could be and the necessary for the government to give miranda warnings to a suspect based on an unknown conflict  interview that i've been wanting to talk to you i mean this was a completely voluntary interview the only reason he didn't leave is because he wanted a rule thirty five motion and those types of subjective pressures are not the types of pressures manual or guidelines and these are two instances where it says and why one says and why conceal it from the government because it's illegal and that's a concept of the payments the rd party the next one you also acknowledge it's against the law referring to mr pegg's statement that would show pace in the prison both on both occasions mistrials were requested cost or instructions were requested each of those times and that would have been remedied had the court given the request a jury instruction we had charge conference prior to the time of closing argument and which that instruction was was requested not given and when it wasn't given in the and the government obviously no was going to be given these comments  came out during the course of their computer those two comments were referring only to the limited question of whether it's illegal to whether it's illegal to pay a rd party cooperate or as opposed to whether it's  ace because they knew it was illegal that's the full context of of those of the that led up to the government's statement that they knew it was illegal so what they're saying is there's and things seem pretty clear to t he jury is that if you make payments which the u s attorney's office say you're not allowed pay and you try to conceal that the reason you're trying to conceal it is because you know what you're doing is illegal and it's not and clearly it would not be confusing to tell the jury what the law really adds it seems it seems unusual that the government would be arguing that a jury is not entitled to know what the law is because if they know what it is going to be confusing to them adjustments in the way that a defendant should be tried and found it should have his case heard as far as as far as the case being pending we have specific rules as to how long you can challenge a case twenty to fifty five post conviction time periods are established that says once those time periods have expired you cannot challenge a case how could a case still be pending if you can't challenge a case after certain period of time mr pegs in the th year of his incarceration to say that the case is still pending at that point ok would suggest that he has viable remedies that he could use the only way utilize the only thing that can happen ok during that time for the government can ask the court to consider something but that's a far stretch from saying that the case is actually pending at that point from the standpoint of the obstruction statutes so it's creating something which doesn't exist i'm not and the government hasn't cited any case that would suggest that  th year of incarceration that their case is still pending and absent a case that even comes near that or close to that we would suggest that this court would be creating a new law beyond which is already established for a standpoint destruction statute and it would seem that it's it's rewarding the government for charging the wrong statute in convicting and allowing peg's conviction to stand based on something that really wasn't in existence at the time as far as the miranda that situation the common i think which is probably the most offensive was motorists saying to pay you have to get in front of this now ok basically telling him that if you don't come in and confess so what's happening you're going to have a legal problem if that is not because dodo then really nothing should be cussed odile and that's right in the transcript right was played to the jury it's hard to say i think that nothing should be  that they are in custody and certainly miranda rights should be given that one doesn't that statement implying a choice on the part of mr pegg that you should choose to do this in order to help yourself in some way as opposed to you have to do this because you are in custody if you have to do that ok if you want to get some kind of relief or you have a legal problem you better get in front of that legal problem right and work question about that and we want you to tell us that you in fact