morning ladies and gentlemen to counsel are here in the case is being argued this morning so no need to call attendance we can start right away united states versus morning please the court my name is james kennedy and the acting u s attorney for the western district of new york were here today to ask the court in conducting its own review of the totality of circumstances surrounding the defendant's march fourth videotape in common with detectives from the hamburg police department to rest in this court to reject the district judges determination that improperly made some vague implied promise construe as a promise that tell us why you think that's well i think because we know that really i think it was a couple things first of all i think that is erroneous because there was no direct promise made to the defendant the only thing that was he was told was that if he did not cooperate and we know this because he told us this in his motion is prosecuted if he didn't answer the questions that's what he was told yes i'm sorry and so you're saying that's what he understood or should we focus on what he understood or should we focus on an objective interpretation of what the officer said well whether it stands certainly the standard is an objective one however in colorado v connelly the supreme court recognized that there must be son showing that the official overreaching actually caused the defendant to incriminate himself and that's what the court in colorado becoming characterized as an essential link and i think that's really the linchpin in this case what's missing is there's no causation between anything that detectives might have said to defendant and his statements and his confession is ultimately agreement cooperate so what do you want to be in for i mean it's been suppressed you you are proceeding to trial you're you're exercising you the government's actions i think it's right to have us review the evidence for a ruling essentially correct before you go to first and foremost is he identifies his source so it shows i mean obviously there's sort of an implicit admission there that you know he source being tried with him presently not right now they have been indicted separately but i think what i really fashioned from the exchange whereas without without that you have to put the pieces of the puzzle together and argue that they show that he supplied the drugs that killed  be the basis for the district court's rulings and that's that the officer says to him i'm not even looking to come after which might be understood to suggest you are not talk and then you put that together on a totality analysis with the constant references to join the team put on the chairs the you know this is the soliciting of his cooperation and as i understand the district court's analysis and reasoning those kinds of statements to get there suggest to him you cooperate we're not looking to away after you're going to become part of our team and that would have led him to think that he would not be prosecuted now tell us why that's not the way you look at it because your honor those statements occurred more than six minutes into the videotape in those six minutes which preceded those statements by detectives even if they may be construed as imply promises a lot of things happened including just a minute and forty five seconds into the videotape the defendant was asked by detectives rupa why do you think you're here i think i'm here because you want me to help busting somebody that's what he says so he knew exactly why he was there when he showed up there that day i thought he didn't but number one asking this because of course we could look at this tape and say well there's no coercion until you are saying we shouldn't find portion at all but we could allow  very first thing he says is yeah basically we're not looking to come after you you know this is after i mean there's there's even been would you would you agree that if we were to agree with the district court the magistrate judge that the promise was made not to prosecute if he agreed to cooperate the and that promise clearly wasn't honored because he was arrested the day that he provided that know i'm saying it if if there if we were to find that a promise was made and then not kept would you agree that that would support excluding the statement if there was an actual promise there was to a conclusion of a promise that's a finding of fact it's yes ok so to that extent even though we're hearing the same tape as the district court our standard of review is clear errors in it as to whether there was a found by the district court constitute coercion would be to know whether or not the board spoke in amounts to a promise why don't you think that's a question of fact i guess because i don't know how we separate certainly would be if we didn't have a tape and people had just testified to it because we would say oh well the district court got to hear the people it made credibility determinations here i understand it we have the tape the district court had the case but it's still a finding the fact that we review for clear error rather than do novo it may make a difference here i do think that the and i'm asking you whether that question is that well i think it is and that is a question of fact i would have to concede that that is a question of fact but i mean i think again to point out that first of all i mean i think that there's a sliding scale in terms of what promises are i mean clearly we've said they represent right you'll meet a promise right we have precedent on that and you i had understood your argument to be that it was too vague to support that there was clear our because that what was happening here was not enough to constitute well that was certainly the argument is it was raised in the brief however i think even sort of in reviewing the far myself and looking at things i think even stronger argument is the lack of any causation because i think it does the lack of causation between anything that the officer did whether there's a promise an implied promise or anything not of that impacted the defendant in terms of his conduct that day nor caused him to nor can be construed as rendering his statement is involuntary yes instead the officer said to him now you know the guy died so you're going to get charged in this case there's no question about that you think he would have gotten the same statements you got telling him not so to speak if you pardon the pun and for terms of the first six minutes of what happened during this encounter if it was very cooperated he showed up there he knew he was coming there he wanted to answer the questions whether he knew that he was dead or not the record at this point we're stuck with the fact that he did not know that but nevertheless when he was told that he continued to would make admissions including the fact that he provided him provided him with the heroin that resulted in his death that he texted him from the bed these are all statements again that are he nods in agreement to prior to any statements at all soliciting his cooperation i'm going to ask you this question in terms of is there anything in the record keep me healthy outside the record but it does seem curious that having been so cool operative he's charged with the top count as opposed to any agreement kind being reached is there anything in the record that sheds light on what happened you know the only thing in the record that regard your honor is that he was an iffy charge in a criminal complaint which did not a whether or not this can fairly be viewed as overbearing your client's will because you know whether it was a promise or not which is in dispute there's still the question about whether it's coercion  meant for the defense here is that he said that but it's that's not quite the same as and you won't be prosecuted well if if you listen to everything he said i don't think that was it in the last thing that he's told this it's most likely you're not going to be pulled in and there's no surprise expressed in the fact that it's put in terms of most likely as opposed to look you've got a guarantee from us your honor there was at the end of the interview right but i'm talking about your client's reaction to it is not wait a minute i thought there was going to be no no prosecution here we have a totalit tell us what is the and i don't want me i want to make sure we don't over look at what what's your concern here i am not looking to come after you but you gotta get on board or you shut your mouth and the weight of the federal government will come down upon you that is clear is day judge dillard oh yes there are only two choices and he's just been told somebody die and that if and so you would understand that if if in the circumstances you don't talk and you're going to get you're going to be are the full weight of it that's not the same as saying it's or nothing but i don't think it has to be all or nothing i mean you're saying your client thought it was going to get prosecuted that's nothing but i didn't say that judge alert oh said that that was that meaning was here defending right you're here defending that your client thought he wasn't going to get prosecuted addle for supplying the drugs that took a lot well there is some preliminaries that weren't briefed very well what happened in this case because i i didn't the goal is to get a hearing i submit an affirmation from my client you don't want to reveal everything in the affirmation big for obvious reasons so we said enough to get a hearing judge mccarthy ordered a hearing that the government attorney said judge we don't need a hearing it doesn't matter what mr hague understood these words to mean it's an objective standard and he submitted a lot of case law to to persuade the court that ok we don't need a hearing and both parties agreed we're going to decide this case just on the objective meaning of the words used the words used your honor if you can just bear with me because i noted the ones that  significant to me the people that are the direct people that distributed this especially if it caused the death or going to be the number one targets technically that could look very bad for you now i'm going to ask you it's your call either you get on board put on the team jersey play for this team or you can be on the losing team he keeps using the word or or is a very definitive connecting term that means it's either this or it's that i don't know how else to interpret the this language i am not looking to mess with you i am not looking to come after you but you gotta get on board or you shut your mouth and shutting his mouth your honor is those words are very important because the decision mr hake had to make here was whether to assert his fifth amendment right to remain silent which would have been what an attorney would have told him to do or to waive that right and he was told i am not looking to come after you but you gotta get on board or you shut your mouth and then the weight of the federal government will fall down upon you now the judge will learn oh in his decision said the meaning of those words were loud unmistakable and i agree with them they are allowed clear and unmistakable this man was given an either or choice this this was after judge for learn to review the videotape two judges reviewed the video tape two judges watched the entire tape and they came to the same conclusion that this wasn't a vague implied promise there are a lot of things that mr kennedy can tell you wasn't said it's not what wasn't said it's what was said and i mean i'm not even through my list yet i mean this man looking at the tape the absence of any market change in your client's behavior throughout the whole of the tape well i mean my client has a personality that's not on the record but it's you know he's a thirty three year old band and there was not a lot of reaction he was told that someone he knew died he expressed that he was not aware of that if  there's some suspicion he was i'm not aware and there was just a kind of a flat affix throughout and there was no market change saying oh you're offering me you know to get out of jail free if i cooperate that was ok let's let's start talking it was  i saw no change that may not been a factual finding that i'm entitled to make on review it was looking at clear error but nonetheless it was striking and i wondered if you had a comment yes it was something i noticed that it was something that would have been dealt with at a fact finding hearing had we had one and i was willing to induct a fact finding hearing judge mccarthy ordered effect finding hearing but it was the government that said that has nothing to do with this what has nothing to do with the effect it had on mr hay that they said that it's it's an objective standard it's not a subjective standard it's not what the words mean to him it's what the words mean objectively you would say even maybe that the videotape is irrelevant you should we should just be looking at the transcript is that correct given the fact that the government had an opportunity for a hearing and they argued against the hearing and the hearing was canceled strictly because the government didn't want the hearing i think would be very unfair to the defense to start considering the effect that it is the words apparently had from viewing the video the defendant i mean that's not so i mean we we look at the  evidence and that evidence includes the video certainly if your client had broken down at some point or whatever you would want us to consider that in terms of at least how the officers actions are viewed but let me stick with the objective standard you know you've talked about the government saying war on one side is we're not looking to come after you on the other side with the weight of the federal government is going to come down on you in a case in which someone has died the likelihood that the government would offer a no prosecution deal to the supplier seems extremely remote so on the not looking to come after you why why isn't objectively it's not looking to come after you with you know the the most severe counts we can deal here we can you know we can deal deal plead to something lesser why isn't that the understanding of who who could have thought that having been the one who supplied the drugs that killed somebody were going to walk away because the rocha told mr hague that he was looking for the source those were the people he wanted that most doesn't mean that's the only person he was looking for i mean this goes on all the time in cases that don't involve drugs whatever the the cooperating winds up pleading he pleads to a lesser count but rarely do people walk away judge you know that and i know that but mr hate didn't know that well that's a question for  objectively what would someone understand here but i mean i'm i'm just asking you to comment on the fact that given the severity of what your client did an expectation that not looking to come after you would mean not looking to come he was nodding in consent that well i'm being he was he was also talking so let me let me take you down that path for slightly do you agree that there is a period of exchange conversational exchange however that occurs up to about six minutes before you say the government it's a city police officer a detective whatever he is on some task force before the before the government agent starts giving him the  choices i don't think it was six minutes in and i apologize i looked at the tape and i'm pretty sure it's six minutes and before i heard the first either get on the two more we're not looking to come after you we could even start with that for whatever that means so would you c e then that everything up to that point there were no promises made no coersion that would come in i would concede that up until the point that the coalition started their words using the we're not looking to come after you that is the promise you talking about i think the first statement that started the ball rolling here was the people that are the direct people that distributed this especially if it caused the death are going to be our number one targets and it went on from there but that's not a promise of anything that's just a statement  your argument has to be if you're going to be successful at all you made a promise we're not looking to come after you that's what you're characterizing as a prop as it first gets articulated six minutes and trust me but obviously double check will will all make sure we get it right but everything up to that point has got to be admissible doesn't it i agree that the suppression issue starts with the very direct promise promise right and or and or  threat that the district court judge found to be very coercive way to the federal government coming down and i mean that is the the issue i agree with you your honor that that's the issue that  i believe makes this confession involuntary so anything that happened before the statement became involuntary i would agree with you that there's no basis to suppress that just if to is basically about what was not specifically said there's a lot of things that weren't specifically said i don't think we can go down that road we got to focus on what was specifically said and i've got about half a page of quotes that were coercive and maybe each of them individually wouldn't have brought us here but in total mr hayek was given an either or choice he selected the the option that basically as judge florida said who in their right mind would select the other option no one would that's coercive that's involuntary and we don't want to be offering evidence in criminal cases based on coerced confession very briefly are thank you they know your review is particularly appropriate where as here it she's missed you can i just want to ask a quick question or would you say that mr it's in fact received any benefit from his cooperation and if so what was it well initially he was only charged with the ultimately he was charged with the death and hence it is true so would you say there was any benefit that he  there was a period of plea negotiations which interceded between the time the complaint was filed and the december one you know the seven or nine months later when but i mean that's that's really all it's in the record record does seem pretty clear that he did cooperate is i'm sorry and the record does seem pretty clear that he did yes he did right yes there's no question about that yes and i mean i would point out still to i mean until and unless you know what the case is resolved these are all factors i mean such factors in terms of a five k or anything i mean there's a court is aware that's typical procedure but people get credit for their cooperation you know at the time sensing oftentimes if not earlier in terms of potential cle position but i just want to point out that in terms of the standard of review really what i think that the key thing here is that there is no dispute as to the relevant facts and for that reason they know review is appropriate this court instruction  versus david davis at three twenty six a third three sixty five which is why that where were the relevant facts are not in dispute and i don't think that they are in dispute here i think the import evidence that that is available i would just just i'm real quick on the first two factors under to tell the circumstances the characteristics of the accused in the characteristics you know of the interrogation there's at least fifteen different factors all of which weigh in favor of  would be a lot easier here if the man it's been told anything you say can be used against you now let's talk you know the fact that he wasn't told that when we put it in the it would be better for us certainly if it were there i agree but he still no i mean the point is he came to the police station that day knowing exactly why they wanted him there they wanted him to cooperate ultimately that's what he agreed to do i don't think that there's that detectives aruca did which overboard and i think it's borne out on the tape itself which you were born his well or improperly induced him to do something that he otherwise was not prepared to do when he walked into a police station that much was i think for thank you very much