court my name is daniel blanc and i represent the defendant of hell in this case your honour's the errors by the district court in failing to suppress unconstitutionally of teen statements in permitting improper expert testimony  i'll begin with the miranda issue your honour's there were two sets of statements in this case one at the residence and one of the police station and in each case the district court erred in presuming an implied waiver of miranda rights it's undisputed that the opposite did not obtain in either instance and expressed miranda waiver instead what happened at the residence is that the officer read one set of questions from the front of his card informing the stronger of his rights and asking if you understood but declined to read them any of the questions from the reverse side of the card which included the questions regarding whether mr younger was interested in waiving his rights that's actually the record or only that mr younger understood his rights and that eventually happened was that he that there was a show up at the window and the officer made an accusation to him saying that's his that's the guy through the backpack was brought down stairs read his miranda rights and then before any waiver and before any expressed questioning i think that's what maybe runner's referring to was before and a direct question he volunteered that stuff belongs to me effectively and that we can use it's not at all your honor first of all this is that was in response to the functional equivalent of questioning well your honor if i can explain how either if i want to at some point where he seems kind of sappy that i want you to talk about when he's at the police station later he says  can i get an attorney right now man you can have an attorney right now and well like right now you got one all of those are unequivocal indications of the right to counsel this court held saying but excuse me going to rocking the police officers as they're tape question exactly he doesn't say let me tell you tell you police officers anything you find here belongs to me he says that stuff now clearly that's in a context otherwise it's not right but they haven't asked him a question expressly what they've done i officer accused him of being the one to throw the backpack which your honour's by the way is completely gratuitous there was a warrant to search this house there wasn't a question of identity there was no there was wasn't a question at all what this was at a minimum thing interrogating officer should have known that under these circumstances it's likely that the defendant the suspect what have seen that is an accusation and obtain an express waiver it seems to me you've gone so far from why we have miranda warnings to try to create it's how much they use these also the crown in closing to show not just this action which if you're honest correct would be shown by that statement but intent to distribute in fact the intentions tribute was the only contested issue a trial in light of the court's ruling  that was the quantity twelve grams your honor and the government's expert admitted that a heavy user could use up to seven grams per day and there was undisputed testimony in the record that my client was a heavy user so it's well within the realm of possibility admitting these statements even if you couldn't make this one statement about the stuff belongs to me it made it all the other statements after interrogation began without a waiver in the residence and then certainly after the unequivocal indication of the right to counsel the police station and by the way even if the court found that it was any quizzical in the u s invocation of the right to counsel the officer still violated the constitution by doing more than ask clarifying questions of the what you tell and you asked me well what did district court do the district court made an improper legal interpretation of the supreme court's decision in the this in davis there was a prior express waiver of miranda rights both written and oral by the suspect and afterwards the suspect made an unequal sorry and ambiguous and equivocal invocation of the right to counsel and the supreme court said that that was not enough to overcome his prior expressed waiver and in this case davis does not apply because there was no prior expressed waiver there was no expressway her orally there was no express waiver written and this court and she really made that distinction clear in chile what happened is that the suspect was given a sheet of paper with two places to sign the first place the signs as you understand your rights and second place to sign says do you want to weigh these rights says i sign i understand but i'm not signing the part where i'm waiting and sheeley said davis doesn't apply in that case as the government frames the question in terms of whether it's an equivocal or unequivocal indication the right to counsel the government has a three part test and we meet actually ever even if you follow the government's test we meet every aspect of it the government says there's nothing in the statement that suggests i desire well the words he says are can have and when you ask someone in authority with you can have something that's clearly an expression of desire mom can i have a cookie is it ok if i can have a cookie it's clearly that you want something under an objective test as ordinary people speak the second prong of the government's test is whether there was a present desire and what mr younger says is through all of this it's obviously a present desire it's not just some hypothetical time in the future he wants to now through all of this and in fact then when he says this but excuse me you know and when he interrupts the officers to say that it's clear that using those words is a statement of disagreement i'm not agreeing to this but excuse me if i'm right i get a lawyer now that's that's what he's saying and the government of the government's case is to the contrary as i was saying your honour's even if it was merely an equivocal right to counsel equivocal invocation of the right to counsel all the officers could do was ask clarifying questions of this court's authority that's smith versus intel rob toy grooms it's clear that that's all the officers could do they did much more than that they just went right into interrogating him and this court has repeatedly held that merely re advising the suspect of his rights is constitutionally an adequate that's also smith vs and they'll alvarez and but evidence of intent to distribute would not be instead what happened is that through the interrogation at the police station the officers you know kept mr younger talking you saw his gamely trying to defend himself it's not working they get everything out and they want to get but each little statement implicitly statement the government used during the trial having the officers comment on it and direct examination and then in closing to show that he actually had the intent to distribute these drugs that was white in that statement question used to show his intent rule what happened is that the government the district court granted my motion in limine under rule seventy four b to preclude the expert from testifying about my client's intent what was allowed is what this court allowed and solace which is to stay then and hypothetical situation and the typical person  typical amount of drugs or this amount of drugs that is consistent with scales that's not at all with the just the expert did in this case the expert made a direct reference to the drugs in this case saying quote the person individual who tiny little detail in this case down to whether the drugs were in a backpack and with guns and what they were loaded and said what does that tell you and he says that was for sale what this court said is that in campos if from the testimony it necessarily follows the and i'm not sure that this came through entirely in the court record but the district court was appalled at the government's misconduct during closing argument threatened to clear the courtroom which is something that doesn't often happen in front of a jury what happened was that each government counsel their two different ones repeatedly made reference to the courts in limited decisions to admit my client statements as some are suggesting that the statements are more reliable even though of course i question the voluntariness of the statements during the course of the trial but this report was obviously very upset in the jury could see that the problem is that the district court didn't give a curative instruction that i requested and to the jury had no way of knowing why the district court was so upset what it was about the government's reaction that was so problematic from the context that happened before those references to the eliminate emotions the value was just overwhelming the government counsel said quote the government believes that he did possess cocaine and cocaine base for sales purposes and then seconds later kept saying we know we know the exculpate her and they're for first thing that happened factually is mr younger was detained he was brought to a window in the back of the house and identified at this time the backpack was not with the mr younger question immediately the officers left him alone the officers were searching the living room mr younger spontaneously stated the stuff in the back of his mind she don't know nothing about it subsequent to that the officers  your your that your interpretation of the just a court's interpretation that you're asking us to accept is when he talked about having a lawyer was really a statement of the fact that he understood what they had just told him that's correct as opposed to asking for a i don't know about the bag we'll talk about that in front of the lawyers something i don't want to say anything that will incriminate myself in court you know what i'm saying and there are additional statements such as this one indicating that th far is the conversation concerns him generally speaking about the incident and or explicating his girlfriend miss white let you go what the district court said we found he was talking when the conversation closer to perhaps this closing argument we know especially the greatest but the government believes which i think can bernie advocacy one o one you know you cannot say such things and the conduct of the prosecutor in referring to the court's instructions i mean of course holdings on a legal matter asking the person to assume the hypothetical facts that match exactly the facts in the case i'd like be more interested in go about what in the world is going on in this prosecution office with  curative measure instruction so there is not an instruction in the record that was proffered that was that i can look at that when you know i'm going to direct you actually to there's a pardon me if there is  made by the defendant by the officers themselves that they are in any way on their state of mind as you view it and reviewing his interview on tape you may consider those ultimately the decision will be yours as the significance of anything that missteps made by the prosecution work here and in the event this court disagrees any error was harmless given the fact they're in their work raft of measures and this was after all a very strong case from your standpoint tell me what the evidence was that goes beyond just session for personal use and where in the trial you know where it comes from obviously the statement there's the initial statement about it's not the girlfriend she doesn't know nothing about it that sort of thing that doesn't go to beyond personal use it goes to possession so where is  compartment were going our products and i believe counsel reference twelve and a half grams there were i believe eighty one individually wrapped pieces of crack cocaine and then that there was some amount of cocaine powder and base  it's fairly indicative of somebody who is perhaps not just this is not personally used to scenario you have weapon or weapons in this case and that quantity wrapped in packaged as they were i think it's fairly  refer to the person not mr younger there was plenty of evidence in that record left so that the jury of course job is to ultimately infer intent in that situation  relative reference to the government's the course in the many ruling but if you think about what the court did say in the governing council read it at least in part it doesn't say anything about valuing it says the jurors are the ones that find the facts that it doesn't talk about what facts they can consider and not consider can they consider what the government counsel just told them about their knowledge about any extrinsic evidence that they know about the government the court being a gatekeeper that's what was missing and that's why the balancing is that is a problem that was in the fact that the court responded so vehemently on a personal level to what government counsel had done the expert testified with respect to the do you really think that influence this jury is from the standpoint that i think that use or not this is what he said on cross examination he also agreed that the packaging could be with respect to something heavy users would buy a lot at once if he could afford to buy it once and the government the government expert himself the issue of cosco and so you go to cosco it's cheaper it's safer when you're buying drugs on the street to buy a whole bunch at once and if the dealer wrap them up all individually that's what you would get them the expert kept referring to the person and this person the drugs in this case the person in this case not the typical person and that's what's erroneous and was different from the solids with the score to prove that hypothetical questions relating to you know a typical person and there's no way that you could have thought that he was referring to anybody else especially in light of the statements that were admitted the governing council i think mistakenly misconstrues the record with respect to what the statement was the initial statement in the residence he doesn't say the stuff in the bag that would be much better for the government's position if he had but it does accept the record twenty eight he says that stuff it's clearly in a finally i get i think it was just an inadvertent misstatement off the record saying the statement but excuse me if i'm right that statement was before he was mirandized that the police station not after so it's not him just confirming that he understands that he's the secure midden on cross examination that he was eager to get mr younger to testify to speak to him without a lawyer because he thought of easier ways to get more incriminating information from him to the extent that the government the court was to consider the policy arguments like that i think if you consider all