statements that mr chalabi i'm majoring has almost two hour interrogation with the f b i for mr chalabi these procedural safeguards under miranda were not effective to secure the privilege of self incrimination and as a result has a i guess there's two parts of this one we might review didn't over compliance with miranda but it looks to me here is if the miranda warnings were were read in their entirety and let's assume for a moment that i don't think you don't we review it for substantial evidence or abuse of discretion there was there was a hearing there was was there not there was your honor but i was not the attorney you know i understand nobody no blame being assigned there was a hearing and there was test there was testimony and a judge heard witnesses and said i believe that your client understood the warnings how do we review that finding you know i'm not entirely sure  and if i can jump in here there were sort of if i understood your arguments correctly there are essentially three points that you argue undermine the credibility of the the finding of voluntar and knowingness of the waiver one is that the district judge did not suppress everything that followed the miranda warning despite the questions about immigration court despite the suppressing of the telephone number question and the final one is that the district judge allowed the the off script addition to the miranda warning to stand and vitiate the effectiveness of that warning of those three arguments which is your strongest and what's your best authority right now it would be the allowing of the script additional info the reading of the miranda that there are several cases that seem to permit some deviation from the warning as long as the court finds that there is not and such confusion or misleading effects of the off script addition to make the warning in effect of how do you deal with those cases here what makes this case different if you're on i believe this makes this case different because he's reading from a spanish language already understand the end very well which is the additional info that the agent added to the miranda warning and that's why i asked the judge the trial judge in this case didn't seem to believe mr  are being translated from a spanish language form i think that this is a case that would need to kind of look at the tally of circumstances and see if if this defendant actually understood did the district court judge didn't take into account the year the language difficulties to talk about it and find that there was no difficulty in understanding each other i think there was no difficulty in understanding things and like the government pointed out during during the trial was sure he answered some questions in english that were do you know what dropbox is and those things are how a translation into spanish and i think not taking that into account is where the district court judge erred can i think i can understand why you may be reluctant to spend time on this issue but i want to ask you to address the sentencing issue because i understand you're quite as concurrent sentences yes with respect to the sentencing issue what relief for  seek minimum remain and can't we just fix it can't we just say he should have been convicted on four counts he should have only been convicted on one oh and i'm sorry ok yeah  that's a relief you see yes but not a new trial if i take that the point of the quest correct ok so tell me why you think this should be one count rather than four yes your honor to the j case at least in charge if you go there at the end the the court found looked at whether there was a sufficient factual basis to treat each count as separate and they looked at whether congress intended what the intention was for the proper unit in that case they found that a person who simultaneously possesses a multiple multitude of forbidden images in a single time in a single place have only committed a single offense he could have been charged i take it under twenty two fifty two a with multiple counts in your view is that correct i believe so you know i'm a but i think the  matters that the government charged with which i believe are saving it on extra hard drives which ended up being the four counts isn't the proper unit of how congress intended the statute to be written instead they write one or more videos books magazines not hard drive c d s files dropbox accounts whatever that might be is there a difference between the dropbox account and the hard drives your honor i'm not too sure of just reading from the record i believe that he would save the images from somewhere on dropbox and maybe download the same images and i think that's what he did but is there or used it to access but my question is whether the difference in the type of medium storage medium between a hard drive on the one hand and a drop box account on the other makes a statutory difference i don't i don't believe so because the statute actually doesn't talk about the actual media so it's just all away given the fact that he was sentenced concurrently given the fact that there are grouping rules that also apply under the guidelines is this a matter of how many angels dance on the head of  pin that is there and it's an interesting statutory issue but in effect what will the consequences be on the ground well in some respects i think that's correct you honor but i think that there are critical and very valid reasons why these types of counts should be charged but that's a that's a separate question the one judge rosenthal asked does this make any difference in this case well wouldn't shouldn't make any difference for sentencing and if it doesn't why should we jump into it because for a number of reasons charging in this manner is more protective of the defendant's rights it reduces risks of jury confusion and it's alternately consistent with the way the statutory language has been inside a defendant doesn't think it's more protective of his rights he would like to only be convicted of one crime rather than  four so i'm not sure why i thought i guess the question is let me do we put this to you differently we shouldn't create circuit splits we're told that three other circuits have interpreted this statute  in a way that your opponent interprets it it makes no difference in this case you really want us to decide this issue on these facts well we're  respectful your honors you because what you're going to get i think is a decision that says we agree with the other three circuits so you have clarity but it won't be the clarity you want and it's in a case that makes no difference now not your decision so i did you this way so i'm not critical of the original decisions i'm just trying to figure out why the government even contest this issue on appeal just for purposes of argument you could have said without giving up the issue will drop the of the three counts but even though you have made that decision and it's yours so let me ask a question about the old statute the old statute said three or more that's right if somebody had six how many counts would there be under the old staff under the old statute six counts or to well it's under this approach here or if there were six separate storage devices or locations there could be six that's true and it's just focusing on the old statute your second language three or more suggested to me that we're going to impose this crime on somebody who has three or more and it's a crime easier to interpret it and in the old statute when it said three or more right now when it says one or more but if it might interpret ation of the old statute is right that three or more just meant no matter how many you had more three or more you had one crime why isn't one or more one i'm sorry why's and why why one or more one crime i look at the legislative history in congress said you know we're letting people who have to not violate this statute and we need to be tougher on these that's so let's let's move it down to one that's right and so but it's but so the focus the real question is use the language of the old statute and tell me why you thought three or more meant that any time you had more than three it was well i would imagine i mean i don't i haven't charged anything under the old statute but i would imagine that the old statute would recognize that as long as there are at least three the defendant can be charged in the defendant and then you get  the right side of history is of no real help we just want to be tougher on people used to be that was ok to have to that's a terrible thing let's move it down to one it doesn't tell me whether they're separate charges it just tells me congress were to be tough on well tough on point with these images  and then you look into the meaning of one or one or more and the dictionary dished definition of any is interchangeable with one or more has judged the part i recognized in the united states versus fire case that nobody else has recognized in looking at these statutes to cover exactly the same thing why did they use different language twice three or more and one or more and i'm not looked on i'm not asking you to explain the mind of  legislator i'm asking you to be bryan garner aska on this and this is to say assume that congress is different language today minutes under a different thing i don't think so your honor i think they were just tinkering with the language that they had in bringing it to the to the one or more as your result to pan dani equating any with one or more it doesn't necessarily how can we avoid making  that meaning equivalence and reach the result you want well i think i think you can make that equivalence and i think that even without that equivalent did you think we should i do your honor i but i guess my construction is must we make that equivalence in order to reach your result i don't think so your honor because in order to avoid observer assaults and to give the statutory language a reasonable construction and allowing multiple units of charging based on these different storage locations is appropriate as i mentioned it's it's reasonable and logical it allows the government and the jury to focus the proof on these different storage devices as the defendant argued in closing statements the jury should focus on each of those charges and assess the evidence with respect to each one it provides very clear and specific notice to the defense as to what is being charged and it all to ultimately makes the trial easier easier to understand so let's go back and as you know it statute again when somebody had three was it three crimes under the statute it said three or more right had three was it three crimes i believe it could have been charged that way depending on different storage media correct correct if we didn't agree with you and wanted to address your kind of floodgates argument that it would let someone who had zillions of images be treated the same way as someone who had to write isn't the answer to that will charge receiving as opposed to merely possessing the government there are different ways of charging that would ovoid that consequence that that's true but there's also different evidentiary hurdles that may factor into the charging decision as well so there could be very real reasons for just charging possession type counts so your solution would then be to go to congress if you unless we created a circuit split is that there's no logical difference the dictionary definitions are the same the legislative history for this statute that we're talking about in this case emphasizes repeatedly were prohibiting any possession of child pornography so the meaning is the same the legislative history points in well it is actually from a common sense dictionary definition it means one or more than one so it contemplates a foot before you sit down i want to ask you one other question on this there there is language in one of our decisions which that involves charges of first seat and possession instead of multiple counts of possession i do agree with that but i think shell's is looking at the reality of how in the electronic age these counts should be charged and recognizes that when you're dealing with different storage media different charges are appropriate and constitutional thank you thank you on the statute as it's written in is known only possessing one or more books periodicals visual depiction photographs now it doesn't necessarily explicitly say on different hard drives or cds or whatever the medium is to store it so i believe how it's written in congress intended it to be a single offense whether you possess one or more of those for a bit in images  you're not being hard to use all your talk you get to save it for your next argument here thank you thank both counsel for their briefs in arguments in this case in this case will be submitted